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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 comnencement of pensions is matter of positive regulation, without any refernce to the intrinsic merits of the several cases provided for.” This, as a trict question of law, I grant is correct; but if we resort to principles of quity, (as the Secretary has done to illustrate his position) I had supposed hey would relieve a suitor, who had endeavored to assert his claims, although ne might for a time have failed in obtaining his proofs, or in having them luly authenticated, when they would not relieve the sluggard who had slept in his rights.
I am yours,
E. WHITTLESEY. Ion. Peter B. PORTER, Secretary of War.
would not ring his prosent his
P. S. Since writing the above my attention has been more particularly Irawn to the whole act of April 10th, 1806, which, as relates to this quesion, contains two points. 1st. To take the proof by deposition. 2d. The ransmission of all the evidence to the War Department. The act adopts the irst as the time when the pension is to commence. It makes no allusion to he latter. The reason is obvious: It is the duty of the party to make the roof before the judge or justice; it is the duty of the judge or justice to end it to the War Department. By section third he is to " note particulary the day on which the testimony was closed before him.” Why? If that ve an immaterial point, why certify it? If the other be the material point, vhy is he not required to certify that?
J. L. Edwards to the Secretary of War.
Pension Office, December 27, 1928.
Sir: I discover from Mr. Whittlesey's letter to you, of the 11th instant, hat he has entirely misunderstood my object in the allusion which I made o the Attorney General's opinion, in my report of the 6th instant. My ntention was not to prove that the cases of Moses Adams and Colonel fohnston were parallel cases. Had I supposed that they were so, I should nevitably have come to the same conclusion to which Mr. W. has arrived; he pension would have been allowed to Adams from 1826, and there would lave been no necessity for giving even a part of the proceedings in Col. Johnton's case, and, of course, the whole would have been superfluous. My inention 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 principlc contended for, is simply this: Evidence i never complete until all objection to it is removed. Mr. Whittlesey say 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 128 erroneous, and no decision of the Department has ever prored that it way 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 nad to cases of special legislation, in order the better to determine what it tention of Congress was, it was found that the certificate of the clerk w* thenticate the proceedings was not deemed essential to complete the evideo and for this obvious reason: The act of April 10, 1806, did not require. a certificate, and it was only in some cases, where the evidence was tās before a State judge, that such a certificate was ever annexed. I agree w Mr. Whittlesey in all that he affirms respecting the act of 1806, 92 however, has no bearing, I think, on the case of Moses Adams, be that law and the revolutionary pension laws direct very different ru evidence to be observed. The act of March 1, 1823, under which Adams obtained a restoration to the pension roll, requires the evidens be taken before a Court of Record, and makes the clerk's certificate of that evidence. That certificate being a part of the evidence, and generally bears the last date, often determines the commencemente pension. It was so in Mr. Adams's case. Mr. W. has been pleased i that I have used the word papers, which is not in the law, evident, feat the claim. What motive I could have had for wishing to de claim, no one can tell, I imagine. If that had been my object, its likely that I would have written the sentence which immediately. I therein refer to the section and date of the law, and quote the precis of the law. I never supposed that the use of words to explain the u of a law could be construed into false quotation, or I should have be careful in the selection of suitable expressions. To me it cannot ter of any consequence when a pension commences. All that! to discharge my duty faithfully. The laws and regulations are intr perplexing in many instances, and if by them the Department st casionally be involved in apparent inconsistency, it ought not to ca prise, and it certainly does not deserve censure.
I have the honor to be,
Your obedient servant,
shing to defeat the object, it is not very mmediately follows
the precise words xplain the meaning
re it cannot be a mez
all that I desire is
JAMES L. EDWARDS
Hon. P. B. PORTER, Secretary of War.
May 12, 1830.
Mr. WAITTLESEY, from the Committee of Claims, made the following
The Committee of Claims, to which was referred the petition of Rich
ard Hardesty, report:
That the petitioner asks to be paid for the damages he says he sustained, in the change made in the location of the Cumberland Road, at Wheeling Creek, by which his best land was occupied, and a valuable mill seat much injured, if not entirely destroyed, and for extra work done in the construction of a quantity of mason work, in making the road over his land.
It appears in his petition, that he gave liberty to the Commissioner who aid out the road, to pass over his land free of compensation; but he says he rave no liberty to alter the site of the road from where it was first located, jor were his mills to be injured. In a report made by the Commissioner o the Secretary of the Treasury, February 17, 1819, he says, the change of he road was opposed by the road makers, but not by the proprietors; and, hat the contract vested him with the power, and he made the change. There s evidence among the papers to show, that his saw mill seat was injured by he change. Mr. Thompson, the superintendent, has given his deposition, ut he is silent on this part of the case. To the full investigation of this ubiect, the committee would require of the petitioner the original or an uthenticated copy of the conveyance made to the United States of the right f way over his land, and evidence that he objected to the change in the cation of the road at the time, with reasons why the damages were not hen assessed, and why his claim has lain dormant to this time. Without ascending more into particulars, the committee will remark that the peti
ner must establish his right by indubitable proof. There is proof that de petitioner performed extra labor on his mason work, which was not conmolated by the contract, but which gave permanency to it. It appears, sever, by the deposition of Mr, Thompson, that Moses Shepherd was
original contractor, and that Mr. Skinner was a sub-contractor under m and that the petitioner was a contractor under Mr. Skinner. There es not appear to have been any privity of contract between the petitioner d the United States, nor is there any evidence to show that the United itos recognised him as a sub-contractor. An act was passed for the relief Mr Skinner, in May, 1824, which was understood at the time (and there no evidence to prove the contrary) to include all the extra work performed