general Treasury. But do these acts grant to them commutation of five years full pay and interest? They clearly do not; for, to give them the broadest possible construction, they only granted to those officers the same privileges, advantages, and emoluments as had been then granted to the officers of the State in the land service, and not to such as might thereafter be allowed them; and up to that time no one contends that commutation had been allowed by Virginia to any of her officers, for it had been nowhere mentioned or alluded to, and the act of 1790 is the first and only foundation for the claim of commutation pay for either the officers of the State line or navy, if such was ever granted to either. That act reads thus: "Whereas doubts have arisen whether certain officers hereinafter described have a right to compensation of half pay; forthe removal of such doubts "Be it enacted, &c., That the same compensation of half pay should be extended to those officers of the State line who continued in actual service to the end of the war as was allowed to the officers of the continental line, and also to those who became supernumerary, and being afterwards required, did again enter into actual service, and continued therein to the end of the war, any act or acts to the contrary in anywise notwithstanding."-3 Hen. 131. And can any even after the passage of the act. To The naval officers are not mentioned in it. The compensation of half pay was to be extended to the officers of the State line. But does this act give commutation of five years full pay to anybody? I think not, sir. The language relied upon for that purpose is, that the same compensation of half pay should be extended to those officers of the State line "as was allowed to the officers of the continental line." And it is argued, because, under the resolutions of Congress, the officers of the continental line had the privilege of taking a commutation of five years full pay in lieu of half But, sir, we are told that half pay for life and pay for life, that therefore the State of Virginia, commutation are one and the same thing, and by granting to the officers of her State line the that, therefore, compensation of half pay is the same compensation of half pay, granted to same as commutation of five years' full pay. If them the same privilege of taking, if they pre- all the officers had died just ten years after their ferred to do so, the commutation of five years full half pay commenced, this would be true, but if pay in lieu of half pay for life; but, sir, this can- they died in less time the half pay would be less not be so, for if they were granted the same privi- than the commutation of five years' full pay; if leges, they must have taken it under the same limit- they lived longer than that period it would be ations and restrictions. What were they? Why, greater. Under these acts of Virginia, her courts in the first place, the officers in the continental || decided that the officers of the State navy were enservice had to make their election, under the reso- titled to half pay, contrary to a correct construction lutions of Congress of 1783, within six months at of them, in my humble opinion, however prethe furthest after the passage of the resolutions; and sumptuous it may seem in me to express it; but this time had expired long before the passage of they expressly decided that they were not entitled the act under consideration. They had to make to commutation of the five years' full pay in lieu their election by corps and States, through certain of the half pay. There was a large class of these commanding officers. This could not be done half-pay claims of both the State line and the State under this act, at the time of its passage, by the navy, the payment of which she resisted. They officers of the State line, nor did the act require were the claims of the supernumeraries who were them to do so. The officers in the continental not called into service again after becoming superservice had to make the election before time enough numerary before the close of the war, but finally, had elapsed for them to see which would be the on a second appeal of them to the supreme court most valuable, the half pay for life, or the com- of that State in 1830, that court decided favorably mutation of five years' full pay. This could not to their allowance. This very greatly increased be the case under this act of Virginia, for more the liability of the State; and after paying off a than seven years had elapsed from the time they large amount of these cases, and after judgments were entitled to receive half pay; that is, from the were recovered against her for a large amount close of the war, or from the time of their reduc-more, and there being many more still outstanding tion in 1783; and those who were then alive would consider the half pay the most desirable, but the heirs of those who had died would take the commutation of five years full pay, which would be the most valuable, it being equal to ten years half pay. Moreover, sir, this act of 1790 fixes no time within which such election shall be made, she resolved to apply to Congress for relief from them. In 1832, her Legislature appointed Thomas W. Gilmer to lay her application before Congress, which he did, and the result was the passage of the act of the 5th of July, 1832; under the third section of which the Barron and other claims to which I have referred were paid. This act of Congress provided for three classes of cases. The first section provided for the payment to the State of Virginia the amount she had then actually paid on account of half pay promised to the officers in her line in the war of the Revolution, the sum of $139,543 66. The second section provided for the payment "to the State of Virginia the amount of the [unsatisfied] judg'ments which have been rendered against said 'State for and on account of the promise contained " in an act passed by the General Assembly of the State of Virginia, in the month of May, A. D. 1779, and in favor of the officers or representa'tives of officers of the regiments and corps" therein recited, "not exceeding, in the whole, the the sum of $241,345." And the third and last section reads as follows: "SEC. 3. And be it further enacted, That the Secretary of the Treasury be, and he is hereby, directed and required to adjust and settle those claims for half pay of the officers of the aforesaid regiments and corps which have not been paid or prosecuted to judgments 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, which several sums of money herein directed to be settled or paid shall be paid out of any money in the Treasury not otherwise appropriated by law." It authorizes the Secretary of the Treasury to settle those claims for half pay of the officers of certain regiments and corps, and for which the State of Virginia would be bound on the principle of the half-pay cases already decided, &c. Now, sir, this speaks of half pay only; not one word is said which can possibly be construed or tortured into a provision for the payment of commutation or commutation with interest. The undertaking is not a general one, for paying even all the claims for half pay, for which that State was bound, because it is expressly limited to the claims for half pay of the officers of the regiments and corps named in the second section of the act only; and if the officer did not belong to one of those particular regiments or corps, his claim for half pay could not be paid under this section, however much Virginia might be liable for it. But, sir, I am told the act must be taken together in its construction, and that when so taken together, notwithstanding commutation of full pay is not named in this section, the term "claims for half pay" is shown to include claims for commutation pay also. Why, sir? Because it is said that the term "claims for half pay" in the third section is substantially the same, and that Congress undoubtedly intended it should bear the same meaning as the term "accounts for payments made on account of half pay" in the first section. I will read that section: "SEC. 1. Be it enacted, &c., That the proper accounting officers of the Treasury do liquidate and pay the accounts of the Commonwealth of Virginia against the United States, for payments to the officers commanding in the Virginia line, in the war of the Revolution, on account of half pay for life, promised the officers aforesaid by that Commonwealth, the sum of one hundred and thirty-nine thousand five hundred and forty-three dollars and sixty cents." And because some of the accounts of Virginia provided for by this section embraced cases where she had previously paid commutation, that therefore, the term half pay in the last section was intended to include commutation pay also. But, Mr. Speaker, I think this difference of phraseology in the two sections, instead of being the same in effect, is entirely dissimilar; and instead of showing that it was intended to provide for the same cases, I think it is the strongest evidence that it was not so intended. I am asked, wherein is the difference. I will tell you. Prior to 1830, there was a class of claims, the payment of which, as I have before said, was resisted by Virginia, and many of them were settled by special acts of her Legislature. In some of these cases the half pay exceeded the commutation and interest, but the claimants were willing to take this instead of the half pay, and the Legislature gave it to them by way of compromise, and many of them were compromised in the same way, in her courts, by officers of the State. These compromises were not made when the half pay for life exceeded the commutation and interest thus taken in lieu of it. And here I will remark that it was from these compromises, in my opinion, from the investigation I have been able to give the subject, that the practice grew up in the settlement of these claims in that State of allowing interest upon the commutation, and of considering commutation and interest as one and the same thing as half pay; and this opinion is sustained by the statements of her agent, Mr. Gilmer, in his application to Congress, upon which the act of 1832 was passed. In it he says: "In some few cases the commutation has been voluntarily accepted by the officers of the Virginia State line; but the courts have uniformly rendered judgments for half pay during the life of the officer, when it was demanded.” Mr. Barbour, a member of Congress from Virginia, who reported the bill to the House, in his report accompanying it, intimates the same thing. Now, this first section provided for the repayment to Virginia whatever she had then paid, and hence the language on account of half pay was used to cover those cases which had been thus compromised by the payment of commutation and interest (being less than the half pay) on account or in lieu of half pay, and which had been voluntarily accepted by the parties. Similar language is used in the second section. The direction in that section is, "to pay to the State of Virginia the amount of the judgments which have [then] been rendered against the said State for and on account of the promise contained" in her act of 1779. Now, some of these judgments had been rendered for commutation and interest, by way of compromise, as stated by Mr. Gilmer, the agent of Virginia, in his application; and hence it provided for the judgments rendered, not only for the promise of half pay, which was the only promise of the act of 1779, but also on account of it. I wish especially to call the attention of the House to the fact, that it expressly goes back to the act of Virginia of 1779, which gave half pay only, and makes it its basis. At the time that act was passed, not even the officers of the continental line had asked or thought of the commutation. The first commutation that was given by Congress was in 1780, and the first act of Virginia, upon which any pretence for a claim for commutation is based, is that of 1790. It seems to me apparent, therefore, that Congress, in expressly referring to the act of 1779, which gave half pay only, clearly indicated an in tention to avoid all claims for commutation under the act of 1790, and intended to restrict the act to judgments rendered for half pay only, and to those cases where commutation had been paid or judgments rendered for it on account of half pay for life, and in lieu of it because it was less than the half pay. The third section provides for the payment at the Treasury Department of the claims which had neither been paid by Virginia nor pros ecuted to judgment against her; and therefore there "SEC. 6. And to all such officers or their legal representatives, who claim from the State of Virginia, upon the same promise made to those of the above-mentioned regiments or corps, and to those of no other corps or regiments, the amount of such judgment as they or any of them may hereafter recover against the Commonwealth of Virginia for and on account of the promise of half pay during life made by that State to the officers of these regiments and corps." So, sir, you see that the change was not an accidental or an unmeaning one. What else could it mean, then, but to confine it to claims to be settled under this section to half pay only, and to exclude commutation? Another thing that shows that this is a correct construction of the act is, that this was all that Virginia asked. She neither asked Congress to pay commutation or interest. Her agent expressly stated in his application, that Virginia had never commuted the half pay of her officers. But here are his own statements, in his same petition from which I before read: "With the exception of a few cases, it is the principal only of these half-pay claims which Congress are asked to refund to Virginia, as no interest was allowed on the claims which have been adjudicated by the courts. "The State of Virgini 1 has never commuted the half pay of her officers, as was done by Congress in regard to the half pay of the continental officers. "It was not competent for Virginia to do so, or otherwise to vary her contract under which the claims were asserted, without the consent of the contracting parties, and the officers of the State line never petitioned for commutation as those of the continental line did.” Again, sir: in a written statement which the agent made to the select committee who reported the bill to the House, and which they appended to their report, he says that- Ah, sir, he little thought that interest was ever to be allowed upon that commutation. Now does any one suppose that Congress intended to pay these officers more than they were entitled to from the State of Virginia? They must have been very liberal indeed; and even supposing, as is now contended, that Mr. Gilmer was mistaken, and that her courts had decided that they were entitled to commutation and interest, that cannot alter the case. We must interpret the acts of Congress, not by what was true, but by what was represented to them to be true, and what they believed to be true, because it was upon this that they acted. Of this Virginia cannot complain, because Mr. Gilmer was her legally authorized agent, appointed under her laws, and of course she is bound by his acts and representations. He said, in effect, that Virginia did not ask commuta|| tion or interest. Can any one suppose the law intended to give what was not claimed and more than was claimed? Besides, the general practice of this Government has always been, as shown by the Secretary himself, in stating the case of Ewell (to which I shall hereafter refer) for the opinion of the Attorney General, not to allow interest on claims outstanding against it, and to have provided for the payment of commutation and interest by this act would have been a violation of that rule. The claims were then outstanding, and no time was fixed within which they were to be presented for payment at the Treasury; and the interest under such a construction would have continued to run, as the Secretary has, indeed, since allowed it, until the party himself might choose to present it. Here, then, would be debts outstanding against this Government, with interest accumulating, which it could not pay off, however much disposed, until the holder might choose to present them for payment, and thereby stop the interest. Can it be supposed that Congress ever intended such a thing when there was no obligation upon this Government requiring it? Is it to be presumed that Congress intended to grant to the officers of Virginia or their representatives, greater advantages than had ever been granted to those of the other States in continental service? Yet, if this act extends to the payment of commutation, such were granted by it; for as I have shown the latter were compelled to make their choice, to take commutation in lieu of half pay within six months at longest, and that by corps and States, if, therefore, the representatives of an officer of Massachusetts, or Pennsylvania, or New York, who had died years ago, as most of them did, but who did not make that choice within that time, or if he had been desirous of making the choice within that time, and his brother officers of the same corps or State, as the case might be, overruled him, and therefore deprived him of the privilege of taking commutation, should now present their claim for adjustment. They would be allowed half pay only during his life, without interest, which might amount to two thousand dollars; whereas, the representatives of an officer who served in the same capacity in the Virginia State line would be allowed his commutation of five years' full pay, which would, per "The State of Virginia never commuted the half-payhaps, as in Graves's case, be the same sun, yet claims of her officers, and as it is probable that the claim ants would not now take five years full pay instead of the half pay for life, unless where the officer died within ten years of the close of the war, in which case the Government would not give it,” they would be allowed the interest under the construction given to this act by the late Secretary of the Interior from the close of the war until now, which would make it twenty thousand. Sir, Congress never intended to make this distinction-never did make it. They only allowed what that section, in plain language, expresses, to the officer of Virginia what the one from the other States would have been allowed at the same time and under the same circumstances-half pay only, without interest. This construction has been put upon it by every Secretary of the Treasury and War, and every Attorney General, before whom the subject has ever been brought, from the passage of the act until the incoming of General Tay-musty records but themselves? lor's administration. Claims for commutation, or for commutation and interest, have been invariably rejected, and half pay only allowed. Among those who have thus decided is that distinguished jurist, the present Chief Justice of the United States. The decisions were made after the most careful and thorough examination. The opinions, many of them, are able and elaborate--not such as some which I will soon show you, upon which this settled practice of the Government has been ruthlessly overthrown. This section was thus construed, as I shall now show, both by Virginia and by Congress. The latter has repeatedly refused to give it a different construction, or to grant any legislation for the payment of commutation. upon this point; but I will show them that the action of this House, in the passage of that resolution, instead of being an argument in favor of the construction which they give to that act, is directly the reverse. Sir, I regret that this minority, in ransacking the musty pigeon-holes to find something to sustain this conduct of the Secretary, did not see proper to examine a little closer, so as not to have overlooked and neglected so many important things. Did they think no one could examine Now, sir, I hold in my hand this resolution as originally introduced into the House. The preamble then contained the following important paragraph, in continuation of it as passed: “And as it was the intention of Congress, by the said third section, to pay to the said officers the same sum which they would have been entitled to have received from the State of Virginia, but from the wording of said section the intention of Congress is rendered doubtful, and the officers of the Treasury do not feel themselves authorized by the construction which they have put upon said section to allow and pay the commutation of five years full pay with the interest thereon from the date aforesaid: "Be it therefore resolved," &c. The preamble and resolution were referred to a committee, which amended the former by striking out this whole paragraph. The committee reported them back to the House, which concurred in the amendment without a division, and passed the preamble and resolution in their present shape. The same House, therefore, which had at the previous session passed the act, expressly refused to In 1833, at the second session of the Congress which had passed the act, the Treasury Depart ment having, in the mean time, decided that this section did not authorize the payment of commutation or interest, this joint resolution was passed by the House, but failed in the Senate. The pre-say that it was intended to authorize the payment amble, after simply reciting the third section of the act of 1832, continued "And as the Supreme Court of Appeals has decided that the officers of the State line who were entitled to half pay under the laws of Virginia, should be paid a commutation of full pay for five years, in lieu of half pay, with interest thereon at six per cent. per annum, from the twenty-second day of April, one thousand seven hundred and eighty-three, till paid: "Be it therefore resolved, &c., That it shall be the duty of the Secretary of the Treasury, in the adjustment and settlement of the claims provided for in said section, to allow to the claimants the five years' full pay, instead of half pay for life, with interest from twenty-third day of April, one thousand seven hundred and eighty-three, until paid, applying this principle to cases heretofore presented, as well as to cases hereafter to be presented under said third section." Now, sir, I will show you another beautiful piece of the consistency of this minority of the committee, and to what straits they have been driven, in trying to bolster up the conduct of the late Secretary of the Interior. One great effort made by them in their report, and by the gentleman from Ohio and the gentleman from Virginia, in their speeches, has been to show that the House had no right to make this investigation; that it could result in no good; that no action of this House could or should control Executive action in reference to the allowance of these claims; that if we pass the resolutions reported by the committee they should have no weight with the executive officers; and I believe the gentleman from Virginia threatens an impeachment if they should allow them to control their action. Yet one of the strong grounds taken by the minority of the committee, to justify the construction put by Mr. Ewing upon this law, is the passage of this resolution by the House only. They say it was a legislative construction of it, and entitled to great weight. So, sir, I will let one part of their argument answer the other; and, moreover, I will turn them over to theftender mercies of the gentleman from Virginia of commutation. In 1838 and in 1844, and perhaps at other times, Congress refused to extend the act to the payment of commutation. I will here remark, sir, that the part of the preamble not stricken out, should have been, for it is not true in fact, for, so far from the supreme court of appeals having decided that the officers of the State line who were entitled to half pay under the laws of Virginia, should be paid a commutation of full pay for five years, in lieu of half pay for life with interest, it had expressly decided that a large portion of them, those who had become supernumerary before the end of the war, and were not required to, and did not again enter the service, were not entitled to commutation, although they decided them entitled to their half pay. I will also remark, that officers of the navy are not even alluded to in the preamble or resolution. But, sir, we are told that there is an act, passed in 1835, and a section in the civil and diplomatic appropriation bill of 1848, by which Congress has given such a construction to it as to cover them; and to these the Attorney General and the minority of the committee have resorted for authority to justify the payment of these outrageous claims. Sir, upon a question of such importance, and after Congress had for years approved and acquiesced in the construction given to the act of 1832 by executive officers, and after it had more than once expressly refused to change that construction or to extend its provisions, you will naturally expect to find something clear and emphatic in its action which should authorize excutive officers to decide that it had at last determined to do so. Well, sir, here it is. This is the act passed March 3d, 1835. It is "An act to continue the office of Commissioner of Pensions." What an act, sir, in which to look for a change of the construction of an antecedent law, by which hundreds of thou sands of dollars are to be appropriated from the Treasury! The 4th section transfers certain duties, which had before been discharged by the Secretary of the Treasury, to the Secretary of War; and among others, those "in relation to Virginia claims for revolutionary services and deficiency of commutation" were so transferred. These duties were afterwards transferred, on the organization of the Department of the Interior, with the Pension Office, to that department. Sir, who but the Secretary of the Interior and the late Attorney General would have found anything in the mention of the simple words "deficiency of commutation" in an act intended merely to transfer certain duties from one department to another, which should change the settled construction of a law solemnly given to it by the Executive Department and law officers of the Government, and which Congress had expressly refused to alter or interfere with? It is said that the fate of empires turn upon small events, and surely, sir, in these latter days, the fate of the public Treasury hangs upon small matters indeed, and especially when an excuse is sought to plunder it. The old adage says, "A small leak will sink a ship," and it seems, too, that a very slight stroke of the pen in this instance has produced a leak in the Treasury, which, if it does not empty it, has given it, under the care of the two very learned doctors who lately had it in keeping, a very free depletion, and which will still be continued until it will reel from the effects of it, unless we speedily staunch the leak. Sir, is it not astonishing that none of the able men who have been at the head of the War Department, and who have filled the office of Attorney General from 1835 to the incoming of the administration of General Taylor, notwithstanding the incessant importunity with which these claims have been urged against the Government, never dreamed that those two little words changed the law of 1832? Yet it is even so. The wonderful discovery was left to the late Attorney General, and lucky was it for these claimants that he did discover it, for I do believe he is the only man living, or who ever will live, that would have done so. Sir, it is ridiculous to talk about such a construction having been given by this act. Why, sir, after this act was passed several decisions were given both by the Secretary of War and the Attorneys General against the allowance of commutation. an antecedent law no one pretends to deny, but when that antecedent law has received a clear judicial or executive construction, and that construction has been long acquiesced in, the intention to change it should be plainly and explicitly expressed, not left in doubt or to inference, and when the subsequent legislation relied upon as indicating that purpose can be fairly explained in a way consistent with that previous construction, that explanation should undoubtedly be given to it. Now, what is the meaning of "deficiency of commutation," as used in the act of 1835? It is this: I have shown that some of these officers prior to 1832 had taken commutation and interest in lieu of half pay, when it was not equal to it. The act of 1832 allowed them half pay, and hence the departments have decided that these persons were entitled to have the deficiency between the commutation and interest which they had received, and the half pay to which they were entitled made up to them, and this deficiency is what is meant by the term "deficiency of commutation;" and this is the only explanation which can be given to it, for commutation in lieu of half pay is not "deficiency of commutation;" and this explanation is consistent with the act of 1832 as heretofore construed, and therefore this act does not change that. Now let us briefly examine the act of 1848, and see if it changes the construction given to the act of 1832 so as to extend it to payment of commutation. The clause of that act relied upon for this purpose reads thus: "For repayment to Virginia money paid by that State under judgment of her courts against her to revolutionary officers and soldiers, and their representatives for half pay and commutation, a sum not exceeding eighty-one thousand two hundred and seventy three dollars and seventeen cents: Provided, however, That the agent of said State shall first deposit authenticated copies of the acts or judgments under which the money was paid by the said State of Virginia.” Is there anything in this to change the act of 1832? Clearly not. It does not allude to it in one way or another. That act provided for cases which had before that been paid by Virginia, to cases wherein judgments had before then been rendered against her, and to claims for half pay then outstanding and which had then neither been paid by nor prosecuted to judgment against her. After the passage of that act, and the Treasury Department had refused to pay claims for commutation and interest under it, judgments were recovered upon such claims against the State of Virginia in her courts to the amount of this appropriation. These judgments Virginia had paid, and this sum was appropriated to repay to that State the amount she had thus paid: not because the United States were under any obligation to do so by the act of 1832, or otherwise, but because Congress chose voluntarily to assume this further but limited responsibility. The State of Virginia did not so understand it, for on the 10th day of February, 1838, her Legislature passed joint resolutions "instructing her Senators and requesting her Representatives in Congress, among other things, to procure the passage of a law, that in future all claims for commutation as aforesaid (that is, commutation of five years' full pay in lieu of half pay for life) be settled at the Treasury Department as the claims for half pay Sir, if commutation was payable under the law are now settled under the act of the 5th of July, 1832. of 1832, where was the necessity for this approNot one word, sir, about the act of 1835." Her priation? for that act appropriated whatever sum Senators and Representatives did make the attempt, was necessary for the payment of all claims paybut Congress refused to grant the request. Con-able under it. The very fact that this was made, gress, at other times since 1835, expressly refused is evidence that Congress did not consider claims to extend the act of 1832 to commutation claims, for commutation provided for under that act. The or to make any provision for the payment of them, minority of the committee felt the force of this poso that neither the executive nor legislative depart-sition, and attempted to avoid it by saying that ment, nor the Legislature of Virginia, recognized any change of this act by that of 1835. That a Legislature may by its acts give a construction to that act provided only for the payment of such claims to individuals, and not to the State; and that, as these had been paid off by and were |