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that on 28 August, 1833, he was pensioned at the rate of two hundred and fifty-five dollars and eighty-two cents, which he received regularly up to the time of his death, which occurred on the 11th June, 1836. During this time there was no complaint that the allowance was not made in conformity with law, or that the applicant was not pensioned according to his true military rank. In May, 1851, an application is submitted on behalf of the representatives of the deceased pensioner for an increase of the amount of pension, claiming the difference between what he received and what he was entitled to according to his rank of quartermaster.
The proper time to make this question was in 1833, when the pension was allowed. If injustice was done, Mr. Murray, who was then living, must have known it, and he should have sought redress by an appeal. The whole case was presented, and if the decision of the Pension Office was wrong, the means of redress were afforded by an appeal. No appeal, however, was taken, and the pensioner acquiesced in the action of the Commissioner of Pensions. After the lapse of eighteen years the descendants of the pensioner, in substance, ask for an appeal from the decision in which their ancestor, who was personally ignorant of the justice or injustice of it, acquiesced without a complaint. It is true the application is not in form an appeal from that decision, but it is in substance, and the disguise of making the application in the form of a petition for an increase, and appealing from the refusal to grant it, is too thin to conceal its true character. In all courts of law and equity there are limitations, varying in different States (but in none, I believe, exceeding five years) to the right of appeal from a judgment. By analogy I think this limitation should be adopted in the Pension Office, and in no instance should a case be reviewed after five years, unless upon the discovery of new evidence not accessible to the party by due diligence at an earlier day. Acting on this rule I should unhesitatingly affirm the decision of the Commissioner of Pensions. But if it were a new case, presented for the first time, I should feel constrained to reject it.
It is alleged that the pensioner was a quartermaster. If so, where is the evidence of it? Such appointments were not made verbally. There was some written authority from the superior officer. None such is exhibited. On the contrary, all the documentary evidence in relation to his appointment shows that he was appointed keeper of a depending post. The nature of that appointment appears from the extract of the letter from Major dier whilst on legal furlough, he being still "in the service," that is, “ in the line of his duty," would entitle him to a pension, as well as to bounty land. Yet, strange to say, the first opinion of an Attorney General here given, (ante, p. 353,) denies that a soldier is “in the line of his duty," that is, “in the service," whilst he is on furlough. The better opinion seems to be, that he is always in the line of duty, during his enlistment, except when he has withdrawn from it by resignation or desertion.
Clairborne, in which he says "to Mr. Wm. McCrene, Deputy Quartermaster, your making New London a depending post on account of the artificers and public works that are carried on there, has my approbation. As to the agent you have appointed to influence it," he has no knowledge.
It was rather as a superintendent of artificers than as a military officer, and his pay was not as a military officer at so much per month, but as a civil employee at $2 per day.
The evidence is fully reviewed in the report from the Pension Office, and I do not deem it necessary to do more than say that I entirely concur in the conclusions of the Commissioner.
In all cases hereafter, where there has been a final adjudication of more than five years standing, I would advise the Commissioner not to disturb it, unless upon the most clear and satisfactory proof of the discovery of new evidence which would justify a court of equity in granting a bill of review. It is better that there should be some cases of hardship to individuals than that litigation should be interminable and the time of the officers of the Government wasted in the re-examination of adjudicated
ALEX. H. H. STUART, Secretary.
[ 134.] Arrears of pensions due to revolutionary (or any other) pensioners, (not claims that never have been pensioned,] may be paid to widows or orphans, or their guardians for their benefit, but not to administrators or executors of the deceased pensioner-such arrears not being assets.
DEPARTMENT OF THE INTERIOR, March 17, 1852. Sir: Upon an examination of the question presented in your report of the 17th October last, in relation to the payment of arrears of pension to “personal representatives” in the cases of Maddox Fisher and John Phillips, I have to inform you that I entirely concur in the views expressed by you in your report, and that therefore your decision in those cases is affirmed, of which you will please advise Mr. V. Ellis, the attorney for the claimants.
ALEX. H. H. STUART, Secretary. JAMES E. HEATH, Esq., Commissioner of Pensions. [Copy of the report affirmed by the above. The references in brackets will be found in
PENSION OFFICE, October 17, 1851. SIR: After some unavoidable delay, I have the honor to return herewith Mr. Ellis's letter of appeal in the cases of Maddox Fisher, deceased, and of John Phillips, deceased—not deeming it necessary to send over the cases themselves, since the applicant correctly states that a point of law alone is involved in them. In both arrears are due, and in both an administrator is the claimant, there being neither widow nor children in existence.
The act of 23 March, 1829, [p. 153, No. 99, ante,] provided that arrears of pension due to any revolutionary pensioner at the time of his death should be first paid to his widow; if no widow, to his children, and if neither widow nor children, then to the legal representatives. This enactment seems to have been rendered necessary by the omission in the acts of 1818 and 1828, to provide for the distribution of such arrears.
The act of June, 1832, which introduces a totally new system of pensions, prescribes also a new rule upon the subject. Arrears under it are made payable to the widow, and if there be no widow, to the children. Had this act merely provided for the payment of a debt already existing, Congress would have no power to interfere with the State laws prescribing the distribution of personal assets; but as pension is the mere creature of that body, it undoubtedly had the right to affix to it any descendible quality it judged expedient, and no authority can be found for admitting to its benefits any class of persons not expressly named. The naming of one set of heirs is an exclusion of all not named. Under this act, therefore, an administrator could never have been recognised by this office as a claimant, until the act of June 19th, 1840, permitted it to be paid to him “for the sole use and benefit of the children, to be distributed among them in equal shares and never to be regarded as assets.” If there be no children, the purpose for which the administrator is allowed to claim the arrears can never be answered; and the reason ceasing, the law ceases also Were any other construction adopted, it would involve the absurdity of constituting the administrator the heir of his intestates, to the exclusion of collaterals—for there is no one in existence to whom the law requires the money to be paid by him, and it never can be employed as assets in liquidating the debts of the decedents. This view of the subject is in accordance with that expressed by Attorney General Mason in the case of Paulina Le Grand, [July 14, 1846, p. 481, No. 95, ante;] and though there are some precedents of an opposite character, the opinion of Mr. Mason is sustained by Messrs. Poinsett and Woodbury, Secretaries of War and of the Treasury, (p. 538, No. 35, ante,] and by others of acknowledged ability on pension laws. See also the opinion of Secretary Marcy, in the case of Elizabeth Cragie, [p. 557, No. 52.] I am informed that this decision was at first dissented from, but afterwards concurred in by Secretary Ewing.*
J. E. HEATH, Commissioner. Hon. A. H. H. STUART, Secretary of the Interior. * Mr. Ewing's opinion, on a similar occasion, seems somewhat to vary this question of the right of the legal representative or administrator, by looking to the common law for a personal representative" as the claimant entitled. (See p. 567, No. 77, of this work.] But the “personal representative" at common law, (not being the widow or child of the deceased pensioner,) might be liable to the objection that “a pension is not assets,” and therefore cannot be claimed by him.-EDS.
REGULATIONS, FORMS, AND INSTRUCTIONS,
SECRETARIES OF WAR, NAVY, TREASURY, INTERIOR,
COMMISSIONER OF PENSIONS,
IN EXECUTION OF THE PENSION LAWS AND BOUNTY LAND LAWS.
I. REGULATIONS FOR GRANTING MILITARY AND NAVY PENSIONS. *
[1.] Regulations established by the Secretary of War, for substantiating claims to Pensions on account of wounds or other injuries received during the late war with Great Britain.
WAR DEPARTMENT, December 23, 1817.+ The following evidence will be required in all militia cases, and cases of the regular army, where the discharge and surgeon's certificate have been lost or destroyed, or where none have been given, to enable the Secretary of War to grant pensions, viz:
In cases where the regular discharge and the surgeon's certificate for disability cannot be had, the applicant for a pension, whether he has been a soldierf of the regular army, or a militiaman, in the service of the United States, must produce the sworn certificate of his captain, or other officer under whom he served, stating distinctly the time and place of his having been wounded, or otherwise disabled; and that the same wounds or disabilities arose while in the service of the United States, and in the line of his duty; with the affidavit of one or more surgeons|| or physician, whether of the army or citizens, accurately describing the wound, and stating the degree of disability to which the soldier may be entitled under it. These documents to be sworn to before a judge of the United States' court, or some judge or justice of the peace; and, if a State judge or justice of the peace, then, under the seal of the clerk of the county in which such judge or justice may reside; and the name of the paymaster, who last paid the soldier, as belonging to the service of the United States, to be in every instance furnished by the applicant, in order to a due examination of the muster rolls.
* Nearly all the regulations under this subdivision apply equally to military and navy revolutionary pensions, except those of No. [1,] which apply only to military invalids of the war of 1812.-Eds.
† The absence of any evidence of regulations anterior to 1817, can hardly be explained by the conflagration of the War Department by the British in 1814. But the want of forms of declarations for the use of applicants for invalid pensions in accordance with the regulations of 1817, above given, might be well supplied, from the tenor of those regulations, compared with the forms embraced in the regulation [3.] This, and other official omissions of forms of declaration for invalid pensions in other branches of the service, are accordingly supplied at the end of this appendix.-Eds.
| These rules of evidence are applicable to claimants of every grade. | The applicant, if within thirty miles of an army surgeon, must obtain his certificate * There appears never to have been an official form of declaration prescribed for the use of applicants for indigent revolutionary pensions under the act of the 18th March, 1818, or its supplementary acts of the 1st May, 1820, and 1st March, 1823. The claimants were consequently obliged to elaborate a form for themselves, conformably to the laws, and to the general regulations above prescribed, as appears by the files.-Eds.
JOHN C. CALHOUN,
Secretary of War.
[2.] Rules and regulations for substantiating claims to Pensions, to be observed under the law of Congress of the 18th of March, 1818, viz:
WAR DEPARTMENT, March 25, 1818. The commissions of officers, and the discharges of the regular soldiers of the army of the revolution, (if in existence,) applying for pensions under the above act, will, in every instance, be furnished to the War Department; and the signatures of the respective judges, certifying in these cases, must be attested by the seal of the courts where such judges preside. The person applying for a pension to declare, under oath before the judge, that, from his reduced circumstances, he needs the assistance of his country for support.*
J. C. CALHOUN, Secretary of War.
[3.] Rules of evidence adopted by the Secretary of War, in revolutionary pension claims,
under act of June 7, 1832.
DEPARTMENT OF WAR, June 27, 1832. The following regulations have been adopted by the Secretary of War for carrying into effect the act of Congress, passed June 7, 1832, entitled "An act supplementary to 'An act for the relief of the surviving officers and soldiers of the Revolution :'
This law has been construed to extend as well to the line as to every branch of the staff of the army, and to include, under the terms "continental line," "State troops," "militia," and "volunteers," all persons enlisted, draughted, or who volunteered, and who were bound to military service; but not those who were oc