longed was transferred in October, 1777, from the State line of Virginia into the Continental line of the army of the United States. The Committee on Revolutionary Claims, to whom the petition was referred at the last session, could find no just cause to allow the claim in the form in which it was presented, but say "there is no prohibition for justice to the petitioner in the third section of the act of 5th July, 1832," and added, in conclusion, "that whatever claim he may have, is to the remainder of his half pay promised by Virginia,” and that there was no necessity for further legislation for his relief.

After this report was made, the claim was again presented to the Department for payment, upon the original ground which had been overruled by Mr. McLane, and the same question is now presented for my opinion, whether it is embraced in the 3d section of the act of 1832.

Concurring altogether in the conclusion of the Secretary of the Treasury, I am of opinion that the claim is not provided for in that section, and cannot be paid without further legislation.

The act of 1832 may be regarded in some respects in the nature of a contract between the United States and the Commonwealth of Virginia. The former assumed certain obligations, which, for the sake of greater precision and certainty in their fulfilment, were divided into three separate classes, altogether distinct and independent of each other. The first section provides for the repayment of the amount which had been paid by Virginia on account of the half pay claims of her citizens for services during the revolutionary war. This class, let it be remembered, had been adjusted and paid by the State prior to the passage of the act of 1832. In adjusting these accounts, the accounting officers of the Treasury had no authority to investigate the merits of the original claims; they could only examine the vouchers and compute the amount which had been paid by Virginia, without contracting any further obligation whatever. The second section relates exclusively to outstanding judgments, constituting the second class of these claims assumed by the United States under that arrangement. It is not pretended that the present claimants can have any relief under any one of its provisions.

The third section is limited to claims to be adjusted and settled by the Secretary of the Treasury, and such as had not been paid or prosecuted to judgment against the State of Virginia, and for which said State would be bound on the principles of the half pay cases already decided in the Supreme Court of Appeals of said State. The nature of the obligation contracted under this section varies essentially from the two former. Observe the difference of language. The requirements here is to adjust and settle, evidently referring to a class of outstanding claims not already embraced in the previous sections. Viewing the law in the light of a contract, it will be perceived that the facts which it was agreed should regulate the performance of the stipulations in the two first sections had been fully ascertained by Virginia herself, and by her authorized tribunals. Consequently, it was provided in the first place, that the actual payments made, when ascertained, should constitute the measure of the obligation assumed, and the covenant of payment was made to apply to the accounts of the State, and not to the claim of the officers, for the reason, that the claims embraced in that section had been already adjusted and paid.

Surely, then, it is immaterial whether any given claim was paid before or after judgment, if it had been adjusted before the passage of the act of 1832, and if the amount so paid was included in the list of settled accounts. It does not appear that the nature and extent of the obligation, or the rights of the parties under the second section, have ever been drawn in question.

Further comment, therefore, on that provision is unnecessary.

Under the two first sections, by the express words of the act, the payments were stipulated to be made to the State, and not to the claimants, for reasons too obvious in both cases to require any mention. It is therefore clear, in my judgment, that all claims which had been adjusted and paid by Virginia prior to the 5th July, 1832, were embraced in the first section of the act, and that the Department has no power to re-examine or re-adjust the amount thus found to be due and fully settled between the two Governments. Much stress is placed in the argument in behalf of the claimants upon the following sentence of the third section: "And for which said State would be bound on the principles of the half pay cases already decided in the Supreme Court of Appeals of said State." It is insisted that this provision enlarges the obligation assumed, and authorizes the Secretary of the Treasury to re-open and re-adjust any case settled by the State, where the amount paid to the claimant was less than the original claim. I cannot so regard it. On the contrary, it seems to me that it was inserted for a very different purpose. It was intended to prescribe the rule of adjustment which Congress contracted to apply in the settlement of the unliquidated claims not embraced in the

previous sections. In this sense it is an important part of the compact; for while it secures the application of just rules in the adjustment of outstanding claims, it operates to guard the Treasury against imposition and fraud. This was desired by both parties, and to accomplish this purpose it was agreed that the Secretary of the Treasury should be governed by the rule which Virginia had prescribed to herself while the obligation rested upon her, and before it had been transferred to the United States.

It is assumed in the argument, that in some few cases similar claims have been allowed by the Department. I have not the documents before me to examine the special circumstances under which such allowances have been made, nor do I deem it of much importance; for if such examples can be found, their influence is more than counterbalanced in this case by the official opinion of the Secretary of the Treasury, pronounced on the 17th May, 1833, rejecting the claim. It would be unsafe, in my opinion, to disturb that decision at this day, without the sanction of Congress. Questions litigated before the Department must be considered as closed at some time, and when shall that rule be applied, if not after a solemn decision and fourteen years' acquiescence in its justice and propriety.-United States vs. Bank of Metropolis, 16 Peters, 400-1. There is only one point further in the argument which I feel called upon to consider at the present time. It is contended that the phrase "prosecuted to judgment" has reference solely to the judgments specifically enumerated and classified in the second section of the act. No doubt such is the general application of the phrase. But in this special case it may not be unreasonable to regard it in the light in which it was evidently viewed by Mr. McLane, as furnishing an additional obstacle to the right of the present claimants to recover, inasmuch as the list filed by the authority of the State upon which the action of Congress was had, shows that this claim was first prosecuted to judgment, and then paid, and finally included by the first section in the settlement between the two Governments with the adjusted accounts.

It is true that the judgment was for commutation, but it is admitted that it was in lieu of half pay for life. It was based upon a half pay claim, under the promise in the act of the Virginia Assembly.

The party accepted the fruits of the judgment, and his representatives are presumed to be in the enjoyment of them at this time. The papers show that he received the sum of $2,801 33.

It is doubtless competent for Congress to grant relief, and to that tribunal it seems to me the claimants should apply.

Hon. W. L. MARCY, Secretary of War.

NATHAN CLIFFORD.

"Interest as well as the principal of the claim of the heirs of Thomas Ewal, for commutation for military services, may be allowed, as in the case of John M. Galt. (Opinion of 27th March, 1849, p. 663,) [7.] Although interest as a general rule will not be paid upon claims against the government, there are instances in which the government, from considerations of policy, allows it."

ATTORNEY GENERAL'S OFFICE, July 20, 1849.

SIR: The point suggested in the case of the claim of the heirs of Thomas Ewal, upon which you have desired my opinion, I have considered. It is certainly true that, as a refusal or delay of a debtor sovereign to pay a debt is never to be presumed, interest as a general rule is not to be exacted. But there are exceptions, and, in my opinion, this claim furnishes one. It is now too late to inquire whether interest originally could have been claimed upon commutation of pay. The opinion I gave on the 27th of March last, in Galt's case, to which you refer, and under which you have acted, I see no reason to question. It is true, that, in the claim now before me, a judgment has not been obtained against Virginia for the amount demanded; but it is clear that she is liable for it, and that her courts will so decide. In that event, you concede that the United States will be compelled to indemnify Virginia if she pays, or to pay the claimants if they then shall present their claims to the United States. This being so-and I think it is beyond all doubt-I am of opinion that the interest should be paid as well as the principal, and at once. To compel the claimants to incur the expense of a suit against Virginia, which can but result in one way, and to the delay consequent upon it, whilst it could not possibly inure to the benefit of the United States, would be to do great and unnecessary injustice. I repeat, therefore, that the interest as well as the principal of the claim, in my opinion, should be allowed. REVERDY JOHNSON.

Hon. THOMAS EWING, Secretary of the Interior.

"The representatives of Thomas Armstead, a captain who served in a Virginia regiment in the revolutionary war prior to 21st May, 1782, when he became a supernumerary to the 3d of April, 1783, and who died 1st September, 1849, to whom the Virginia legislature allowed $2,400 in 1826, as commutation, without interest, and to whom Congress subsequently allowed half pay from 3d September, 1783, to the period of his death, and afterwards allowed half pay from 21st May, 1782, to said 3d April, 1783, are not now entitled to have the account reopened and restated, so as to allow interest on the said commutation."

ATTORNEY GENERAL'S OFFICE, October 31, 1849. SIR: The questions submitted by you to this office in the case of the claim of the representatives of Thomas Armstead, a captain in the army of the Revolution, in the 1st Virginia State regiment, commanded by Colonel George Gibson, I have considered. As it is only on points of law that the advice and opinion of the Attorney General can be properly requested by yourself, as the head of your department, I shall limit what I have to say to the legal questions presented; and, in doing this, Í must assume as true the facts stated by the Commissioner of Pensions. To devolve upon this office the duty of examining and deciding controverted facts, would make it impossible for the Attorney General to attend to his other duties as prescribed by the act of 1789.

The facts, then, of the present case are these: General Armstead was a captain in the regiment referred to, but became a supernumerary at and before the termination of the war. In February, 1826, Virginia, by a special act of her legislature, allowed his representatives two thousand four hundred dollars as commutation, without interest; and on account of his having been a supernumerary officer, afterwards, in February, 1833, and under the act of Congress of the 5th July, 1833, half pay was allowed them by the United States from the 3d September, 1783, to 1st September, 1809-the period of the captain's death-less the sum which had been paid as above by Virginia; and in October, 1845, a further allowance of like pay was made by the United States from the 21st May, 1782, when Armstead became a supernumerary, to the 3d of April, 1783-the commencement of the prior allowance.

The claim now made is to have the entire account opened and restated, so as to give commutation with interest.

Upon these facts you have submitted to me two questions of law. The first is, whether Virginia, having, by the act of 1826, acknowledged the right to commutation, that right is now open to be disputed by her, or by the United States standing in her place; and, secondly, whether, if it is open, the fact that Armstead was a supernumerary defeats the right to interest on the commutation which Virginia did allow? Your second question being one entirely of fact, I pass it by for the reason heretofore assigned.

First. Is Virginia or the United States estopped from denying the right to commutation itself? If Virginia is, it is because of her act of 1826, allowing it; but the reasons for that allowance do not appear. The legislature may have granted, and perhaps did grant it, without reference to the question of strict right. Indeed, the very ne cessity of legislative interference may have been because there was no antecedent right which could be enforced by the claimant. Such, I think, is the inference from the law, instead of its being an estoppel on the original prior question of title. The case of officers of that description, as is evident from the history of the times, was, in Virginia, considered a bad one. Without fault of theirs they ceased to be in actual service; and on that ground alone were not considered, in respect to compensation, on an equal footing with their more fortunate associates. This very hardship, in all probability, led to these special acts in their favor; but such acts are to be considered-as they clearly were at the time-as acts of favor, as grants of bounty; or, in given instances, as compromises of rights in dispute between the United States and the officer or his representatives. They partake, therefore, in no particular of a right, so admitted as to have the effect of an estoppel as to what they actually grant. To that extent they are exclusive, but no further. The original question of right, therefore, to commutation in the present case, is not, in my opinion, cancelled by the Virginia law of 1826.

Second. Being a supernumerary, I am clear in the opinion that his estate is not entitled to the interest it now claims. The counsel for the claimant is mistaken, I think, in supposing that the right to half pay and commutation is always identical. It is not so under the Virginia law of December 16, 1790, nor, according to my view, under the act of Congress of July 5, 1832. In the opinion I gave you on the 27th of March last, in Galt's case, I stated that the commutation pay which had been recovered of Virginia, or for which, when not paid, she was liable, was under her act of December, 1790. In that respect, I thought my predecessor (Mr. Taney) had been mistaken in the opinion he had given upon the point in 1833. Resting-as I still think the right to such pay does upon the said act of 1790, it is clear, I think, both from the words of the act and its construction by the judiciary of Virginia prior to the act of Congress of July 5, 1832, that it was only secured to officers who had served to the end of the war.

The language of the act of Virginia, in this respect, is too clear for doubt; and in the case of Markham, (1 Leigh, 524,) it was so held. Judge Green, speaking of cases under the act of 1790, in which judgments had been rendered against the State for commutation and interest in lieu of half pay, said that the court of appeals, whilst they held that those who served to the close of the war were so entitled, and in such cases affirmed the judgments, reversed the others upon the ground that the claimants there did not so serve, and were, therefore, not entitled under the act to commutation and interest. The decision in 1 Leigh was just preceding the act of Congress of 1832, and its provisions are to be construed with reference to the obligation of Virginia as ruled by her courts. Its third section is, therefore so to be interpreted, and to be held only to embrace claims for which Virginia was then, under her existing legislation, as judicially construed, responsible.

It was not the design of Congress to leave it to Virginia, either by her legislature or her courts, to enlarge the sphere of her liability. To the extent that she was then a debtor, and only to that extent, did Congress intend to indemnify her. As the present claim, therefore, to commutation and interest, was never due by Virginia under her act of 1790, or otherwise, prior to July 5, 1832, I think it is not embraced by the third section of the act of July 5, 1832.

There are other grounds, perhaps equally fatal to the claim, to which I do not refer, because they are not involved in either of the inquiries you have propounded. REVERDY JOHNSON.

Hon. THOMAS EWING, Secretary of the Interior.

"The claim of the administrators of Commodore James Barron, commander of the State navy of Virginia, during the war of the Revolution, for commutation pay and interest, should be allowed. This opinion is founded upon the judicial decisions of the courts in Virginia, that officers of the navy of that State during the revolutionary war, who served to its close, were equally entitled with officers of their line to commutation pay under the act of 1790, and upon reasons stated in other similar cases." ATTORNEY GENERAL'S OFFICE, January 31, 1850.

SIR: At the request of the Secretary of the Interior, communicated to me in an official note of yesterday, that I would state to you "in writing," the grounds of my decision in the Barron case, "that it may serve as a guide for future action," I have the honor to state, that the decision was founded on the opinion, that, upon the principles of the judicial decision of the Virginia courts, officers of the navy of that State, during the revolutionary war, who served to its close, were equally entitled with officers of their line to commutation pay under the act of 1790, and upon the grounds stated in the several opinions I have given in relation to such pay to officers of the line, that their claim is also due by the United States, under the act of 5th July, 1832. REVERDY JOHNSON.

Mr. EDWARDS, Commissioner of Pensions.

HISTORY OF HALF PAY AND COMMUTATION.

The following extracts are taken from a most interesting publication, made by order of the Legislature of Massachusetts, in 1783. We see in them a succinct history of the origin of half pay for seven years and of half pay for life, with its commutation of five years' full pay, which constitute the basis of all that is now called revolutionary pensions, comprising the greater portion of the present employment of the Pension Office, (bounty lands excepted,) for many years so lavishly bestowed on the survivors of those hallowed times in them lingering among us-while it enables us to look back with amazement and awe, upon the straits to which the revolutionary cause was reduced, at that dark period, when Washington originated and urged the policy of those measures with so much eloquence, become necessary, in his estimation, to sustain that holy, drooping cause, and prevent the army from disbanding itself, under sufferings that had arrived at a crisis no longer endurable. The copy of that publication, perhaps the only one now existing except among the rusty files of antiquity, is in the rare collection of old books made by Col. Peter Force, of Washington, who kindly called our attention to it, and tendered us the privilege of making the extracts for this revised edition of these laws.

"A COLLECTION OF PAPERS RELATING TO HALF PAY, AND COMMUTATION THEREOF, GRANTED BY CONGRESS TO THE OFFICERS OF THE ARMY, TOGETHER WITH A CIRCULAR LETTER FROM HIS EXCELLENCY GENERAL WASHINGTON TO THE SEVERAL LEGISLATURES OF THE UNITED STATES. BOSTON: Printed by order of the General Court of the Commonwealth of Massachusetts. 1783."

[The design of publishing the following collection of original papers, is to give the people of America an opportunity of becoming acquainted with the state of facts respecting the half pay and commutation, granted by Congress to the officers of the army; together with the reason, the necessity and policy which induced the measure. The proceedings will explain themselves, the arguments offered at the moment need no comment; and the consequences which have resulted from the system give the strongest sanction to it.]

THE NECESSITY OF A HALF PAY ESTABLISHMENT.

Extract of a representation made by General Washington to a Committee of Congress. January 29, 1778.

GENTLEMEN: The numerous defects in our present military establishments, rendering many reformations and many new arrangements absolutely necessary, and Congress having been pleased to appoint you a committee, in concert with me, to make and recommend such as shall appear eligible, in pursuance of the various objects in their resolution for that purpose, I have, in the following sheets, briefly delivered my sentiments upon such of them as seemed to me most essential, so far as observation has suggested and leisure permitted. These are submitted, and I shall be happy if they are found conducive to remedying the evils and inconveniences we are now subject to, and putting the army upon a more respectable footing. Something must be done important alterations must be made-necessity requires that our resources should be enlarged and our system improved; for without it, if the dissolution of the army should not be the consequence, at least its operations must infallibly be feeble, languid and ineffectual.

As I consider a proper and satisfactory provision for officers, in a manner, as the basis of every other regulation and arrangement necessary to be made, since without officers no army can exist, and unless some measure be devised to place those of ours in a more desirable situation, few of them would be able, if willing to continue in it. I shall begin with a few reflections, tending to prove the necessity of a "HALF PAY ESTABLISHMENT."

A small knowledge of human nature will convince us, that, with far the greatest part of mankind, interest is the governing principle; and that, almost every man is more or less under its influences. Motives of public virtue may for a time, or in particular instances, actuate men to the observance of a conduct purely disinterested; but they are not of themselves sufficient to produce a persevering conformity to the refined dictates and obligations of social duty.

Few men are capable of making a continual sacrifice of all views of private interest or advantage to common good. It is in vain to exclaim against the depravity of human nature on this account: the fact is so; the experience of every age and nation has proved it; and we must, in a great measure, change the constitution of man before we can make it otherwise. No institution, not built on the presumptive truth of these maxims, can succeed.

We find these exemplified in the American officers, as well as in all other men. At the commencement of the dispute-in the first effusions of their zeal, and looking upon the service to be only temporary, they entered into it, without paying any regard to pecuniary or selfish considerations. But finding its duration to be much longer than they at first suspected, aud that instead of deriving any advantage from the hardships and dangers to which they were exposed, they, on the contrary, were losers by their patriotism, and fell far short even of a competency to supply their wants, they have gradually abated in their ardor; and, with many, an entire disinclination to the service under its present circumstances, has taken place. To this, in an eminent degree, must be ascribed the frequent resignations daily happening, and the more frequent importunities for permission to resign, and from some officers of the greatest merit. To this, also, may we ascribe the apathy, inattention, and neglect of duty, which pervade all ranks, and which will necessarily continue and increase, while an officer, instead of gaining every thing, is impoverished by his commission; and, conceives he is confering, not receiving, a favor in holding it. There can be no sufficient tie upon men possessing such sentiments. Nor can any method be adopted to oblige those to a punctual discharge of duty who are indifferent about their continuance in the service, and are