[ 5.]

When the rolls do not show the disability of an applicant, pension not to be granted without explanation."

WAR DEPARTMENT, January 10, 1825.

SIR: The memorial and papers in support of the claim of Laban Brown to a pension, which were referred to this department by the Committee on Pensions, have been examined.

The rule in the investigation of such cases is, not to grant a pension for disability alleged to have been incurred during or since the late war, unless the testimony adduced by the applicant be corroborated by the rolls in this or the Treasury Department, except only in cases where sufficient reasons are given for the want of such corroborated evidence. In this case, there is no return made of the claimant's disability, nor is there any reason assigned for the omission of such return. Under this rule, the claim cannot be allowed. As it is deemed important, it cannot be dispensed with. The documents are herewith returned.

J. C. CALHOUN. Hon. PETER LITTLE, Ch. Com. Pen. & Rev. Claims, H. R

[6.]

Debts of claimants to be taken into the estimate of their indigence.
WAR OFFICE, May 13, 1826.

The rule heretofore observed in deciding on revolutionary claims, which directs that no debts due from claimants, except judgment debts, are to be taken into consideration, is hereby rescinded. In future, the amount of debts of every description, due from the claimant, when proved to be bona fide debts, will be deducted from the amount of the schedule, and the balance then remaining in the claimant's possession, free of incumbrance, will determine the claimant's right to the pension, on account of indigence. JAMES BARBOUR.

To J. L. EDWARDS, Esq.

[7.]

Yearly interest of property, if less than the amount of pension, not to interfere. DEPARTMENT OF WAR, October 15, 1828.

The rulet of the department in regard to revolutionary soldiers is understood to be, not to withhold a pension on the ground of

The rescinded rule, heretofore observed, was never reduced to writing, and therefore cannot be formally introduced here; but its substance is sufficiently stated in the rescinding rule.

†The rule referred to, was hitherto only verbal; but the above recognition of it has supplied the deficiency thereafter.

property, unless the yearly value of the property possessed by the claimant, shall exceed the amount of the pension.

By the application of the same principle to officers, (our laws having throughout recognized a distinction between the living and expenses of an officer and private soldier,) it would seem that property should be no bar to the claim of an officer, when its yearly value does not exceed the amount of his pension. To J. L. EDWARDS, Esq.

P. B. PORTER.

[8.]

Total disability defined to be that (however trivial) which cannot be wholly or in part

removed.

DEPARTMENT OF WAR, October 23, 1828.

SIR: In answer to your inquiry of this morning, I unhesitatingly give it as my opinion that the words "total disability," as used in the proviso of the act, entitled "An act regulating the payments to invalid pensioners," passed March 3, 1819, were intended as descriptive only of the nature or character, and not of the extent of those disabilities-the biennial repetition of the proof of which is declared to be unnecessary.

The object of the enacting clause of this law, which contains but one section, is to oblige pensioners to exhibit proofs of the state of their respective disabilities at given periods, with a view to graduate the amount of the pension by the extent of the disability for the time being.

The object and spirit of the proviso is to save those pensioners who are placed on the list in consequence of disabilities which are in their nature permanent and unchangeable, the trouble and expense of a useless repetition of proof; and they equally embrace cases (technically speaking) of partial and total disability. The word "total," therefore, as here used in connexion with "disability," should not be taken in its technical sense, as indicating that extent of disability which entitles to a full pension; but in its ordinary sense, and conveying the same meaning as if the word perfect, a complete, a permanent, (for each of which it is often used as a substitute,) had been employed. The proviso indeed explains itself by adding to the words "total disability," the following exemplification of its meaning, viz: "in consequence of the loss of a limb, or other causes which cannot, either in whole or in part be removed."

If a soldier loses an arm or a leg, he presents a case of total disability, which entitles him to a full pension, and he need not repeat his proof, because the record shows that the disability is such as cannot in the nature of things be removed. But if a man lose only two fingers or two toes, it is a case of partial disability, and he receives only a part pension. It would, however, be

equally idle and absurd to require him in this case to prove every two years that his fingers or toes have not grown out again, as it would, in the other, to oblige him to show that his arm or leg has not been restored.

JAMES L. EDWARDS, Esq., Pension Office.

[9.]

P. B. PORTER.

Provision for wounds and disabilities not repealed.

DEPARTMENT OF WAR, November 18, 1828.

SIR: The Attorney General, to whom the question has been referred, has given his opinion,* in which this Department fully concurs, that the act of the 2d of March, 1821, "to reduce and fix the military peace establishment" does not repeal or vary the pre-existing laws on the subject of pensions; and that the same provision "for wounds and disabilities," which existed under the act of March 3, 1815, are still in force, under the analogous act of March 2, 1821. P. B. PORTER.

Mr. JAMES L. EDWARDS, Pension Office.

[ 10.]

Rules to correct inequalities in estimating the indigence of applicants for pensions. DEPARTMENT OF WAR, December 26, 1828.

SIR: The present practice of your office, in regard to the amount of property which under the law of May 1, 1820, shall disqualify a person from receiving a pension, is deemed to be unequal in its operation on different classes of applicants: to correct which inequality, the following rules will hereafter be observed.

The object of the pension law is to provide for the absolute wants of the poor but meritorious soldier, of the revolution: and the highest rate of pension is supposed to be the smallest sum that will afford a comfortable support to an individual. In accordance with this principle, the following rule has been adopted by the Department, and is hereby continued, viz:

1st. When the whole property of the applicant consists in a yearly or fixed income, (such as an annuity for life, bequest, rent, or charge upon lands, or any other incorporeal right,) which is not convertible into capital, he shall not be deprived of a pension, unless such yearly income exceed the full yearly pension of a soldier.

In addition to which the following rules, corresponding in principle, are hereby established.

*See opinion of Mr. Wirt, No. [24.] p. 385, ante.

2d. When the applicant's property consists in money, stock, houses, lands, or such other property as he can, at pleasure, convert into money or capital, it shall not deprive him of the right of pension, unless its yearly proceeds, estimating them at ten per cent. on its total value, shall be equal to the amount of a full pension.

3d. When the applicant's property is mixed and consists of both species, he shall not lose his pension, unless their aggregate income, estimating by the preceding rules, shall amount to a full yearly pension.

As the pension laws of 1818 and 1820, are not predicated on any pre-existing engagement of the government, but were intended as a gratuitous provision for the support of aged individuals, for the time being, the two last regulations will not be considered as retrospective in their operation.

To obtain the benefits arising from the foregoing resolutions, in every case where a claim has been rejected under the former regulations, a new declaration is now deemed essentially necessary, in order to show what is the present state of the claimant's property and to prove his identity. P. B. PORTER.

Mr. J. L. EDWARDS.

[11.]

Rules No. [10] ante, based on the destitution of the applicant.

DEPARTMENT OF WAR, February 2, 1829.

SIR: The regulations of the 26th of December last, in regard to the effect of property on the right of pension, were intended to rescind and supersede all pre-existing regulations on that subject; and were based upon the following simple principles, viz:

It being the declared object of the law to make provision for such revolutionary officers and soldiers and such only, as had performed certain services, and were destitute of the means of supporting themselves, and the sum of eight dollars a month, or 96 dollars a year, having been assumed as the smallest amount that would afford a comfortable support to an individual; it follows of course that where the applicant's property is not sufficient (estimating by the rule laid down in the regulations,) to produce that income, he is entitled to the benefit of the law; but if his property exceed that amount, he is not deemed to fall within its provisions.

The distinction formerly recognized between an officer and a private, in regard to the amount of property which should operate as a disqualification, is of course done away-the more liberal provision of the late regulations rendering its continuance unnecessary. P. B. PORTER.

JAMES L. EDWARDS, Esq.

[ 12.]

Officers in receipt of pay in the army, not to be placed on the pension list.
WAR DEPARTMENT, April 18, 1829.

The President of the United States directs that, in future, no person while in the receipt of pay or emoluments as an officer of the army, shall be placed on the pension list.

The rule of the 11th of December, 1822, is rescinded. Hereafter the evidence in no invalid case, where the laws direct the President to prescribe regulations, shall be considered complete, until it shall have been duly authenticated; and no surgeon's affidavit or certificate shall be deemed evidence of disability sufficient to justify the issue of a pension certificate, unless the same shall have been received at this department within one month from the date thereof.

By order of the President U. States.
J. L. EDWARDS, Esq.

JNO. H. EATON.

[ 13. ]

Pension to commence from the date of the examination of the claim in the office.

The evidence in support of pension claims is not deemed to be complete until decided on by the War Department. In future, therefore, the pension in all cases is to commence at the time when the decision is had on the claim, unless there has been a delay in the examination of the department; in which case, the pension is to commence at the time when the documents in support of the claim are received.

Affidavits or certificates in relation to invalid claims, whether original or for increase of pensions, may be received as evidence, if deposited in the department within three months from the date thereof.

Under the act of March 2, 1829, the widow or children of a deceased pensioner, as the case may be, must prove that they are such, before a court of record, and get a certificate of the fact from the clerk of the court, under his seal of office, before the arrears can be paid, according to said act.

Approved, December 22, 1829.

[14.]

J. H. EATON.

Indigence occasioned by alleged debts to children must be clearly shown.

WAR DEPARTMENT, January 19, 1830.

SIR: In cases of alleged indigence and revolutionary pensions, sought for in your office, let this rule prevail, which will save any further references to me.