29th Congress, Rep. No. 47. Ho. op Rrps, 2c? Session. " r NEW HAMPSHIRE CLAIM. [To accompany bill H. R. No. 5S2.] January 20, 1347. Mr. Ramsey, from the Committee on Military Affairs, made the following REPORT : The Committee on Military Affairs, to whom was referred House of Rep- resentatives bill JVo. 582, entitled * A bill for the settlement of the claim of the Stale of wVcw Hampshire against the United States," respectf ully submit the following report : That this subject has been before Congress for some time, and during the last session met with a favorable report from the Military Com- mittee, and which, as their opinions have undergone no change in this matter, is hereto annexed : " ' In the winter of 1835-'36 the northern part of the State of New Hampshire, bordering upon Canada, became much disturbed by the con- flicting authorities of the State and province, so that bodies of armed men were found opposed to each other in support of the judicial process issued by the officers of their respective governments. To sustain itsjurisdic- tion, the State of New Hampshire called into service a small body of its militia, which continued to occupy the disturbed country for several months, until quiet was restored by the general acknowledgment of the jurisdiction of New Hampshire and the peaceable enforcement of her laws. " { The treaty of 1783 required the dividing line between the United States and Canada to pass ' along the highlands which divide those rivers that empty themselves into the river St. Lawrence from those which fall into the Atlantic ocean, to the northwestemmosthead of Connecticut river, thence down along the middle of that river to the 45th degree of north latitude.' The question which of the several points was the northwestem- mosthead of Connecticut river was, among others, referred to the King of the Netherlands for his arbitrament, who decided in favor of the preten- sions of Great Britain, and thus took from New Hampshire a considerable tract of country over which her jurisdiction had been quietly and uninter- ruptedly exercised from the earliest period of its settlement. It may be proper to remark that this decision was probably owing to the incorrect- ness of the geographical information then possessed by either Great Bri- tain or the United States ; the commissioners of both governments having stopped short in their survey before they arrived at this part of it. By the map constructed by the New Hampshire commissioners, it is seen that the Ritchie^ & Heiss, print. ,j ,v» 255 2 Rep. No. 47. branch of Connecticut river adopted by the arbiter as the northwestern- most head never approaches the highlands at all, and consequently aline passing along said highlands could not possibly reach it. On the con- trary, the boundary line thus prescribed would have to diverge from the highlands at some uncertain point, and actually cross another river, before it could strike what was said to be the head of Connecticut river. Such a boundary cannot be said to be in compliance with the treaty, or even an approximation towards it.' — Report of Mr. Howard, Chairman of the Committee on Foreign Affairs, 1839. " The scene of the disturbances before alluded to was in that part of the county of Coos, in the State of New Hampshire, north of the forty-fifth degree of north latitude, commonly called the Indian Stream territory. It consists of about one hundred thousand acres, and contains four or five hundred inhabitants. Since its settlement, which took place as far back as the year 1790, the State of New Hampshire had always exercised un- disputed jurisdiction there, up to the time of the award of the King of the Netherlands. Disturbances then arose; the territory was asserted, by those who fomented the disturbances, to belong to the province of Lower Canada, and the inhabitants were exhorted openly to resist the laws of the State, and assured of the protection of the Canadian authori- ties. It will be readily seen that during the pendency of the award of the King of the Netherlands the State of New Hampshire was paralyzed. She could not take efficient measures to quell the difficulties which had arisen in consequence of the award, without placing herself in an attitude hostile to the policy of the general government. But, after some time had elapsed, the award was finally set aside, both by the United States and Great Britain. The State of New Hampshire was then remitted to her original rights and duties. " It is unnecessary to go into a minute detail of all the occurrences which arose from these conflicts of jurisdiction. In October, 1835, which was a period after the rejection of the award, an officer under Canadian authority came into the settlement and arrested one of the inhabitants, who was forcibly rescued by his neighbors. The offence charged con- sisted in his having assisted a deputy sheriff of the county of Coos, New Hampshire, in the discharge of his duties. Several conflicts took place, and blood was shed in the progress of these disturbances, which grew directly out of the effort by the Canadian authorities to exercise jurisdic- tion in the territory. " The State applied to the general government to send tioops to sustain the jurisdiction of the State, but the general government thought proper to decline. The State had then no alternative except to abandon her ju- risdiction over this territory, as much her own as any part of the soil within her limits, or to take decided measures to maintain it. She thought it due to those of her citizens inhabiting that territory who had loyally exerted themselves to sustain the rights of the State and of the United States, and who had assisted her officers in serving process under her laws, to protect them, and not suffer them to be arrested on her own soil by officers acting under a foreign power, and hurried out of her limits and imprisoned in a foreign land. The legislature of the State, therefore, unanimously determined to station a small military force in the territory, which force was continued there until order was entirely restored. This was done in the most economical manner, the whole expenses claimed Rep. No. 47. 3 amounting to a little over six thousand dollars; and the result has vindi- cated the wisdom and propriety of the measure. " In February, 1S36, Mr. Bankhead, the British minister, communicated to Mr. Forsyth, Secretary of State, a complaint of LordGosford, governor of Canada, accompanied by a report of commissioners appointed by him to inquire into the Indian Stream difficulties. Among the subjects of complaint, one refers to the ' continual attemps of the State of New Hampshire to exercise jurisdiction and enforce its laws within a territory which, until it shall be formally adjudged to be part of the United States, under the treaty of 1783, must be considered as still undetached from the original possession of Great Britain, and its inhabitants consequently within the protection of her government.' " Another refers to i the military occupation, by the State of New Hamp- shire, of the territory in question.' " The report of the commissioners appointed by Lord Gosford alludes to a warrant issued by Mr. Rae, a Canadian magistrate, for the arrest of two of the citizens of New Hampshire, who assisted in serving legal process in the territory as one issued by him < acting in the course of his duty as a magistrate in co?iscqucnce of an assurance given to the inhabitants of In- dian Stream that they should be protected by the government of this province.' " These complaints were transmitted by the general government to the authorities of the State of New Hampshire. Three commissioners were appointed by a resolution of the legislature of June 18, 1836, " to repair to Indian Stream and collect and arrange such testimony as may be obtained, to rebut and explain the charges and testimony obtained and preferred against the authorities and citizens of this State, by Lord Gosford, governor of the province of Lower Canada.' " The commissioners attended to the duty assigned them, and, in Novem- ber following, made a full report, which is among the papers in this case, and fully vindicated the course of the State and proved the unquestionable title of New Hampshire to the territory. " But the right of the State of New Hampshire to maintain jurisdiction in this territory, and her duty to protect, as she did, her citizens in their lib- erties, on the failure of the general government to do the same, cannot now be disputed, since by the treaty of 1842, commonly called the Ash- burton treaty, the pretensions of Great Britain of right over the territory were entirely abandoned, and the territory is conceded to belong to New Hampshire. " In pursuance of resolutions of the legislature of New Hampshire, pass- ed in December, 1836, the governor of the State transmitted the account of the military expenses incurred to the President of the United States. The subject was brought before Congress by President Jackson, by a special message, in February, 1837. " A favorable report was made by Mr. Howard, chairman of the Commit- tee on Foreign Affairs, on the 16th January, 1839, but the subject was cot acted on by the House. During the session of 1839_'40, a bill to re- imburse the State of New Hampshire passed the Senate at the same time with a bill to reimburse the State of Maine for a much larger amount, for troops called out under similar circumstances. On account of the press of business, these bills were not acted on in the House of Representatives. 4 Rep. No. 47. The claim of the State of Maine has since been satisfied, in consequence of its having been included in the stipulations of the Ashburton treaty. " On a careful consideration of the case, it seems to be entirely clear — u That the territory in question belonged to New Hampshire. " That disturbances arose there in consequence of a claim of jurisdiction by a foreign power, and attempts to exercise such jurisdiction. i - That the State of New Hampshire succ3ssfully maintained the jurisdic- tion of the State, and of the United States, by calling out a small military force. " In addition to this, it seems clear that the disturbances commenced and increased to the extent which rendered the military force necessary, in consequence of the action of the general government, which brought about the submission and the award of the King of the Netherlands. " The House of Representatives bill, herewith reported without amend^ ment, provides that the military force called out on the occasion shall be paid for in the same manner as if called out by order of the general gov- ernment; and the committee recommend its passage, as an act of obvious justice to the State of New Hampshire." ^ — 58th Congress, \ SENATE. j Report 2d Session. \ - \ No. 2416. RELIEF OF THE STATE OF NEW HAMPSHIRE. April 22, 1904. — Ordered to be printed. Mr. Alger, from the Committee on Military Affairs, submitted the following REPORT. [To accompany S. 3192.] The Committee on Military Affairs, ha vino; considered Senate bill 3192, respectfully report: The State of New Hampshire, by two legislative grants, conveyed to the United States 3i acres of land, in the aggregate, on which Fort Constitution is situate, at Portsmouth Harbor, with cession of juris- diction over the same. One grant was made in 1791 and the other in 1807. Each grant contained a proviso, in substance as follows: Provided further, That if the United States shall at any time make any compensa- tion to any one of the United States for the cession of any light-house, fort, or land, which hath been or may hereafter be made to the United States, the like compensa- tion be made to this State for the land, fort, and light-house, by this act ceded, in proportion to their respective values. The United States has paid to some other States for land ceded for forts and other public uses. But the United States has never paid the State of New Hampshire for the cessions above stated. So, your committee finds, that the United States is indebted to the State of New Hampshire to the amount of the value of the said property ceded, as above stated. After the cessions mentioned, the United States, under its power of eminent domain, took and paid for a few acres of land lying between the land ceded, as above mentioned, and the town of Newcastle, as now bounded, but then in said town. So there is a claim the town was deprived of its authority to tax the land so taken. In 1903 the legislature of New Hampshire passed an act entitled "An act for the relief of the town of Newcastle," claiming pay for said 3i acres and reciting the taking by the United States of land and houses in Newcastle of the value of $60,000, "for military purposes in extend- ing the lines of Fort Constitution, thus diminishing the taxable prop- erty of the town to a very serious degree," and providing for an agent to collect the sum due, and appropriating the money, after 2 RELIEF OF THE STATE OF NEW HAMPSHIRE. deducting the agent's fee, "to liquidate the debt of the town, incurred in the war for the Union." Your committee can not assent to the argument that these recitals ' should increase the amount of the debt any more than that the fact that the State of New Hampshire had had the benefit and protection of the fort and light-house for one hundred years should diminish the debt. The chief difficulty in this matter is to determine the amount justly due. The bill fixes the amount of this debt at $30,000; and affidavits on file show that this point of land projecting into the ocean in front of Portsmouth Harbor, in the opinion of the witnesses, could now be sold for more than that sum for a summer residence. The general rule seems to be that the United States should not pay interest, and this debt was never claimed prior to 1903. And it is believed by your committee that the debt due the State of New Hamp- shire is the value of the property ceded at the time of the cessions. Your committee, on the information they have, fix the amount of the debt due to the State of New Hampshire at $3,000, and the committee recommend that the bill be amended by striking out the word " thirty," in the sixth line, and inserting in place of said word so stricken out the word "three;" and that after being so amended the bill do pass. o 34th Congress, ) HOUSE OF REPRESENTATIVES. C Mis. Doc. 1st Session. J J No. 56. REVOLUTIONARY SOLDIERS' CLAIMS. CONCURRENT RESOLUTIONS OF THE LEGISLATURE OF NEW YORK, IN REFERENCE TO The claims of Revolutionary Soldiers. March 14, 1856,— Referred to the Committee on Revolutionary Claims, and ordered to be printed. State of New York, In Assembly , February 8_, 1856. Concurrent resolutions in reference to the claims of revolutionary soldiers, On motion of Mr. Hoyle, Resolved, That we have witnessed with pleasure the efforts which were made during the recent session of Congress for the final settle- ment and payment of our revolutionary debt ; we consider that our government is under the most solemn obligation to carry out the promises of the Continental Congress, as contained in the resolutions of the 21st of October, 1780, January 7th, 1781, and March 8th, 1785, by allowing to the officers of the revolutionary army the half-pay for life, to which they are entitled under those resolutions, for the pay- ment of which the national faith is pledged ; and all those senators and members who have taken an active interest in behalf of the officers of the Revolution, their widows and children, are entitled to the thanks and gratitude of the country. Resolved, That our senators in Congress be instructed, and our members of the House of Representatives be requested, to advocate and vote for a bill to provide for the final settlement and payment of the half-pay for life which was promised by the Continental Con- gress to the officers of the revolutionary army who should serve to the end of the war, or until the time of their reduction, deducting the 2 CLAIMS OF REVOLUTIONARY SOLDIERS. value of the commutation certificates issued in their names ; and that the amount found due he paid to the olficer if alive, and if dead, to his widow and children equally, of such deceased officer ; and that suitable provision be made for the widows and children of those officers who were killed in battle or died in the service ; and that such bill conform to the principles and promises contained in the reso- lutions of October 21, 1780, January 7, 1781, and 8th of March, 1785. Resolved, That the pension law ought to be extended to the widows of those officers, soldiers, and seamen who have died, or may here- after die, in the land or naval service of the United States, without requiring proof that the disease of which they died was contracted in the service. Resolved, That the subsequent marriage of a widow who was enti- tled to a pension or bounty land in virtue of any law of the United States ought not to prevent her from receiving such pension or land, provided she be otherwise entitled to the same ; nor ought any woman whose husband was, or if living would be, entitled to a pension or bounty land under any law of the United States, to be prevented from receiving a pension or land as his widow, notwithstanding she may have been divorced from her said husband, provided he was the offending party. Resolved, That our senators from this State be instructed, and our members in Congress be requested, to advocate and vote for a law declaring that all pensions for wounds received or disabilities in- curred in the line of duty in the military and naval service of the United States during any of the wars in which our country has been engaged, instead of commencing from the completion of the proof, as is now practised at the department, shall commence at and from the date of the disability, and continue during life, or during disability ; and in case of the death of such invalid, the arrears of pension due him shall be paid to his widow if alive, and if no widow, to his child or children, and if none, to his legal representatives for the benefit of the next of kin of such deceased invalid. The laws under which these men entered the service may well be said to have formed a contract between the government and the soldier, that if he should be injured or disabled while in the line of his duty in the public service, he should be pensioned according to the degree of his disability, and to commence when his disability commenced ; and we respectfully •ask the adoption of this principle by Congress, as due upon every consideration of good faith, honor, and justice to those brave men who fought our battles, and shed their blood in defence of our coun- try's rights and independence. A true copy from the journal : KICHAKD U. SHERMAN, Clerk. Ix Senate, February 28, 1856. Resolved, That the Senate concur in the passage of the foregoing resolutions. By order : SAMUEL P. ALLEN, Clerk. 35th Congress, ) 1st Session. ) SENATE. { Mis. Doc. ) No. 221. RESOLUTIONS OF THE LEGISLATURE OF THE STATE OF NEW YORK, IN FAVOR Of the enactment of a law to provide for the final settlement and payment of the half pay for life which was promised by the continental Con- gress to the officers of the revolutionary army. April 5, 1858. — Referred to the Committee on Revolutionary Claims, and ordered to be printed. STATE OF NEW YORK, IN ASSEMBLY, MARCH 8, 1858. CONCURRENT RESOLUTIONS in relation to the officers of the revolutionary army. Resolved, {if the Senate concur,) That, having witnessed with pleasure the efforts which were made during the past session of Congress for the final settlement and payment of our revolutionary debt, we con- sider that our government is under the most solemn obligations to carry out the promises of the continental Congress contained in the resolutions of the 21st October, 1780, January 7, 1781, and March 8, 1785, by allowing to the officers of the revolutionary army the half pay for life to which they are entitled under the resolutions, for the payment of which the national faith is pledged. That all those sen- ators and representatives who have taken a lively interest in behalf of the officers of the revolution, their widows and children, are entitled to the thanks and gratitude of the country. Resolved, That our senators in Congress be instructed, and our members of the House of representatives be requested, to advocate and vote for a bill to provide for the final settlement and payment of the half pay for life which was promised by the continental Congress to the officers of the revolutionary army, who should serve to the end of the war or until the time of their reduction, deducting the value of commutation-certificates issued in their names, and that the amount found due be paid to the officers, if alive, and if dead, to his widow and children equally, and if none, to the next of kin of such deceased officer ; and, also, that suitable provision be made for the widows and children of those officers who were killed in battle, or died in the service ; and that such bill conform to the principles contained in the 2 HALF PAY FOR LIFE TO OFFICERS OF THE REVOLUTION. resolutions of October 21, 1780, July 7, 1781, and 5th March, 1785, and we respectfully ask the adoption of this principle and the passage of the hill by Congress, as due by every consideration of good faith, honor and justice, to those brave men who fought our battles and shed their blood in defence of our country's rights and independence. Resolved, That his excellency the governor cause these resolutions to be transmitted to the president of the Senate and the speaker of the House of Representatives of the United States, for the considera- tion of those bodies respectively, and to each of the senators and representatives in Congress from this State. In assembly, March 8, 1858. Were duly passed. By order, &c, D. WILSON, Clerk. In the senate, March 13, 1858. Were duly passed. By order, &c, S. P. ALLEN, Clerk. STATE OF NEW YORK. Executive Department, Albany, March 25, 1858. Sir : I am directed by the governor to transmit, herewith, concurrent resolutions of the senate and assembly, "in relation to the officers of the revolutionary army." Very respectfully, your obedient servant, HENRY J. SEAMAN, Private Secretary. Hon. Wm. H. Seward, Senate. * 35th Congress, ) HOUSE OF REPRESENTATIVES. ( Mis. Doc. 1st Session. ) ( No. 111. OFFICERS OF THE REVOLUTIONARY ARMY. RESOLUTIONS OF THE LEGISLATURE OF THE STATE OF NEW YORK, IN RELATION TO The claims of officers of the revolutionary army, their widows and children. April 5, 1858. — Referred to the Committee on Revolutionary Claims. STATE OF NEW YORK, IN ASSEMBLY, MARCH 8, 1858. CONCURRENT RESOLUTIONS in relation to the officers of the revolutionary army. Resolved, {if the Senate concur,) That, having witnessed with pleasure the efforts which were made during the past session of Congress for the final settlement and payment of our revolutionary debt, we con- sider that our government is under the most solemn obligations to carry out the promises of the continental Congress contained in the resolutions of the 21st October, 1780, January 7, 1781, and March 8. 1785, by allowing to the officers of the revolutionary army the half- pay for life to which they are entitled under the resolutions, for the payment of which the national faith is pledged. That all those sen- ators and representatives who have taken a lively interest in behalf of the officers of the revolution, their widows and children, are entitled to the thanks and gratitude of the country. Resolved, That our senators in Congress be instructed, and our members of the House of Representatives be requested, to advocate and vote for a bill to provide for the final settlement and payment of the half-pay for life which was promised by the continental Congress to the officers of the revolutionary army, who should serve to the end of the war or until the time of their reduction, deducting the value of commutation certificates issued in their names, and that the amount found due be paid to the officers, if alive, and if dead, to his widow and children equally, and if none, to the next of kin of such deceased officer ; and, also, that suitable provision be made for the widows and children of those officers who were killed in battle, or died in the service ; and that such bill conform to the principles contained in the 2 HALF-PAY FOR LIFE TO OFFICERS OF THE REVOLUTION. resolutions of October 21, 1780, July 7, 1781, and 5th March, 1785, and we respectfully ask the adoption of this principle and the passage of the bill by Congress, as due by every consideration of good faith, honor and justice, to those brave men who fought our battles and shed their blood in defence of our country's rights and independence. Resolved, That his excellency the governor cause these resolutions to be transmitted to the President of the Senate and the Speaker of the House of representatives of the United States, for the considera- tion of those bodies, respectively, and to each of the senators and representatives in Congress from this State. In assembly, March 8, 1858. Were duly passed. By order, &c, D. WILSON, Clerk. In the senate, March 13, 1858. Were duly passed. By order, &c, S. P. ALLEN, Clerk. 35th Congress, \ HOUSE OF REPRESENTATIVES. C Mis. Doc. 2d Session. \ ( No. 27 HALF-PAY OF OFFICERS OF THE REVOLUTION. RESOLUTIONS OF THE LEGISLATURE OF THE STATE OF RHODE ISLAND, IN REFERENCE TO The half -pay of officers of the revolution. January 15, 1859. — Laid upon the table and ordered to be printed. STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS, May Session. A. D., 1858. RESOLUTIONS in relation to the half-pay of officers of the revolution. Whereas the resolves of October 21,1780, and other acts of Con- gress, promising half-pay to the officers of the continental army who should serve to the end of the war, passed in pursuance of the recommendation of General Washington, for the purpose of prevent- ing the frequent resignations of officers and the consequent dissolu- tion of the army, formed a contract between the United States and the said officers, in their individual capacity ; and Whereas Congress, on the 22d day of March, 1783, passed a commutation act granting to said officers five years' full pay instead of half-pay for life, which latter act was not submitted to the officers individually , for their acceptance, but to lines and States, thereby, and in consequence of the depreciation of the certificates of commuta- tion, avoiding, in a great measure, the grant previously made, and causing the officers who had so gallantly performed their part of the contract in achieving the independence of their country to realize but a pittance from such certificate ; and Whereas this general assembly has learned with pleasure that efforts are being made in the present Congress for the just settlement of this debt, to the payment of which the faith and honor of the government of the United States have been pledged : Therefore — Resolved, That our senators and representative in Congress be re- quested to advocate and vote for a bill to provide for the payment for 2 HALF-PAY OF OFFICERS OF THE REVOLUTION. the half-pay for life, which was promised hy the continental Congress to the officers of the revolutionary army, in the resolves of Congress passed October 21, 1780, and subsequently, deducting the value of the commutation certificates issued in favor of such officers, and to cause the amount found due to be paid to them if living, and if dead to their lineal descendants, and if none, to the next of kin of such deceased officers ; and also that suitable provision be made for the widows and children of those officers who were killed in battle or died in service. Resolved, That copies of these resolutions be transmitted by the Secretary of State to each of the senators and representatives in Con- gress from this State. A true copy. Attest : JOHN K. BARTLETT, Secretary of State. Office of the Secretary of State, Providence, Rhode Island, June 3, 1858. Sir : Annexed I have the honor to transmit to you certain resolu- tions passed by the general assembly of this State at its late May session. I remain, very respectfully, your obedient servant, JOHN R. BARTLETT, Secretary of State. Hon. Wm. D. Brayton, Washington, D. C. \ f 35th Congress, 1st Session. SENATE. ( Mis. Doc. I No. 87. IN THE SENATE OF THE UNITED STATES. February 21, 1857. — Received and referred to the Committee on Claims. December 18, 1857. — Referred to the Committee on Claims and ordered to be printed. The Court of Claims submitted the following REPORT. To the honorable the Senate and House of Representatives of the United States in Congress assembled : The Court of Claims respectfully presents the following documents as the report in the case of ESTHER STEVENS vs. THE UNITED STATES. 1. The petition of the claimant. 2. Certificate from the Pension Office, transmitted to the House of Representatives. 3. Opinion of the Court. 4. Bill for the relief of claimant. By order of the Court of Claims. In testimony whereof, I have hereunto set my hand and affixed the r n seal of said Court at Washington, this 21st day of February, LL ' S 'J A. D. 1857. SAM'L H. HUNTINGTON, Chief Clerk Court of Claims. Esther Stevens vs. The United States. To the honorable the Court of Claims of the United States : Your petitioner, Esther Stevens, of the county of Van Buren, and State of Michigan, respectfully represents that she is the widow of James Stevens, deceased, who was an artificer in the war of the revo- lution, and who died prior to the 4th of March, 1848. She further states that she was married to the said James Stevens subsequent to the 1st day of January, 1800, and has been allowed a pension, at the rate of two hundred and forty dollars per annum, on account of the revolutionary services of her said husband, under the second section 2 ESTHER STEVENS. of the act of Congress, approved February 3, 1853, entitled "An act to continue half- pay to certain widows and orphans'/' which pension was made to commence, by the decision of the Secretary of the Inte- rior, un the 3d day of February, 1853, whereas your petitioner insists it should have been made to commence on the 4th of March, 1848. And she now claims that, by virtue of the said second section of the act of Congress aforesaid, she is entitled to arrears of pension, at the rate aforesaid, from said 4th of March, 1848, to said 3d of February, 1853, upon which claim she prays the judgment of this honorable Court. She further represents that she is the sole owner of said claim, no other person having any interest therein. J. J. COOMBS, Attorney for Petitioner. District of Columbia, 1 gg Washington County, $ Be it remembered, that on this 26th day of May, 1856, personally appeared before me, the undersigned, a justice of the peace in and for said county and district, J. J. Coombs, who made oath in due form of law that all the facts stated in the foregoing petition are true, to the best of his knowledge and belief. N. CALLAN, Justice of the Peace. IN THE COURT OF CLAIMS. Esther Stevens vs. The United States. Chief Justice Gilchrist delivered the opinion of the Court. This case is similar in principle to the case of Jane Smith vs. The United States, and the decision in that case settles the right of the present claimant to recover. The evidence is contained in a certificate from Mr. Whiting, Com- missioner of Pensions, dated February J, 1857, in which he states that there is evidence on file in the Pension Office that James Wilcox, her husband, died prior to the 4th of March, 1848, and that she is now in receipt of a pension of two hundred and forty dollars per annum, commencing on the 3d of February, 1853, under the second section of the act of that date, entitled "An act to continue half-pay to certain widows and orphans." We think the claimant is entitled to the arrears' of her pension from the 4th of March, 1848, to the 3d of February, 1853, and we report a bill accordingly. A BILL for the relief of Esther Stevens, of Van Buren county, Michigan. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the Secretary of the ESTHER STEVENS. 3 Treasury be, and he hereby is, directed, out of any money in the treasury not otherwise appropriated, to pay to Esther Stevens, the widow of James Stevens, deceased, an artificer in the army of the revolution, the sum of eleven hundred and eighty dollars, being for the arrears of her pension at the rate of two hundred and forty dol- lars per annum, from the 4th of March, 1848, to the 3d of February, 1853, to which she is entitled under the second section of the act of February 3, 1853, entitled "An act to continue half-pay to certain widows and orphans." ✓ 35th Congress 1st Session. SENATE. S Mis. Doc. it No. 113. IN THE SENATE OF THE UNITED STATES. December 10, 1857. — Received. December 18, 1857. — Referred to the Committee on Claims. The Court of Claims submitted the following REPORT. To the honorable the Senate and House of Representatives of the United States in Congress assembled : The Court of Claims respectfully presents the following documents as the report in the case of 1. The petition of the claimant. 2. Documents received from House of Representatives and trans- mitted to that House. 3. Document received from the Department of the Interior and transmitted to the House of Representatives. 4. Claimant's brief. 5. Opinion of the Court adverse to the claim. By order of the Court of Claims. In testimony whereof, I have hereunto set my hand and affixed the To the honorable Judges of the Court of Claims of the United States : The petition of Francis Nadeau, of Mooers, in the county of Clin- ton, in the State of New York, one of the children of Basil Nadeau, deceased, begs leave respectfully to represent unto this honorable court, that he is interested as one of the heirs-at-law of the said Basil Nadeau, in a claim which the said Basil Nadeau had against the United States for services in the revolutionary war. That his interest in said claim arises from the consideration that he is the son and heir- FRANCIS NADEAU vs. THE UNITED STATES. 2 FRANCIS NADEAt?, at-law (and the only one now known to be living) of the said Basil Nadeau, who died intestate, on or about the eleventh day of July, A. D. 1841. And your petitioner further shows to this honorable court that the said Basil Nadeau enlisted in 1776 for and during the war in Colonel Moses Hazen's regiment in the continental line, and served therein to the close, or until discharged by Congress ; and that the before mentioned claim is founded on a resolution of Congress, passed the 15th day of May, 1778, which provides that those soldiers who en- listed for and during the war, and continued in its service until its termination, were entitled to the reward of eighty dollars ; and for which your petitioner is informed a certificate issued, bearing interest at the rate of six per cent., on or about the first day of March, 1784, which certificate, if ever delivered, is now lost ; and that said reward has never been paid or transferred, as your petitioner is informed and verily believes true. And your petitioner further showeth that, previous to said Nadeau's ^enlistment for the war, to wit : on the 16th day of September, 1776, Congress passed a resolution giving §20 bounty money, and granting bounty lands of 1 00 acres to those who enlisted for the war, continued therein to the close of the war, or until discharged by Congress. And your petitioner further shows, that he made application to the Com- missioner of Pensions fur said land, which application was denied ; also, that he applied to Congress for said land in 1854, but what ac- tion was had thereon he is not informed. Your petitioner therefore prays that this honorable court will ex- amine said claim, and report a bill to Congress for the payment thereof, with the interest thereon, unto the heirs or legal representatives of the said soldier, or such other order or bill as to your honors shall seem fit and proper in the premises, and for said land. And your petitioner, as in duty bound, will ever pray. his FRANCIS + NADEAU. mark. Dated Rousse's Point, August 3, 1855. ■ State or New York, ) §s County of Clinton, ) Francis Nadeau, of Mooers, in the county of Clinton, in the State of New York, being duly sworn, doth depose and say that the peti- tion above, by him subscribed, contains the truth, according to the best of his information and belief. his FRANCIS + NADEAU. mark. Sworn and subscribed before me, this 3d dav of August, A. D. 1855. JOHN BULL1S, Justice of the Peace. FRANCIS XADEAU. 3 IN COURT OF CLAIMS. Francis Nadeau, ) vs. > Claimant's Points and Brief. The United States. 3 I. This claim, like the claims of officers under the resolutions of the 21st of October, 1780, and March 22, 1783, must he regarded as in the nature of an express contract. — (See Mayo & Moulton, Introduc- tion, vii, page 177.) This claim is founded on the resolution of Congress of 15th of May, 1778, and entitled the ancestor of claimant to the reward of $80, for services rendered, and continued to the end of the war. Here was work, lahor and services performed, as the consideration for the re- ward, and the books show him entitled to the certificate, on the 1st day of March, 1784, and does not show it paid. II. As a debt or claim due, and payment withheld, all the legal consequences attach between the United States and the claimants, as in the case of individuals, as it respects the claim of interest. And Congress designed that interest should be paid " on all claims and to all creditors of the United States from the time payment became due." — (See Compend. &c, on revolutionarv claims, Document No. 42, for 1837,38.) III. Congress has acknowledged the obligation to pay the principal in an analogous case. — (See Colin McLaughlin's Bill 249, passed 2d ses. 21st Congress ; Report 1st Ses. 21 Cong. No. 194, as follows :) IV. Claims to be eDtitled to 100 acres of land under resolve of Con- gress September 16, 1776. REPORT. " The petitioner claims and satisfactorily proves, that by his services as a sergeant in Col. Moses Hazen's regiment in the army of the revolution, to the end of the war, (having then been discharged and honored with the badge of merit,) he became entitled to the reward of $80, offered by the resolve of Congress of May 15, 1778. The only question remaining is whether he received this reward ? No register or other evidence has been found showing that it has ever been paid. The petitioner has made oath, in an accompaying affidavit that he has never received it. The character of the petitioner for veracity is supported by certifi- cates of respectable individuals acquainted with him. The committee believe, under view of all the evidence, that it would be unjust to withhold the reward from him, and therefore report a bill directing the payment to him of the original sum of eighty dollars.' ' C. K. AVERILL, Attorney for Claimant. 4 FRANCIS NADEAU. INT THE COUET OF CLAIMS. FRANCIS NADEAU vs. THE UNITED STATES. Chief J ustice Gilchrist delivered the opinion of the Court. The petitioner alleges that he is the only son and heir-at-law of Basil Nadeau, who died on the 11th of July, 1841, and who was a soldier in the army of the revolution. The petition states that Basil Nadeau enlisted in 1776, for and during the war, in Colonel Moses Hazen's regiment in the continental line, and served therein to the close of the war, or until discharged by Congress. The claim is founded on the resolutions of Congress of the 15th of May, 1778, providing that soldiers who enlisted for and during the war, and con- tinued in service until its termination, should be entitled to a reward of $80. For this the petitioner was informed that a certificate issued, with interest at six per cent., on or about the 1st day of March, 1784, which certificate, if ever delivered, is now lost, and that this reward has never been paid or transferred as the petitioner is informed and believes. It is sufficient to say in relation to this claim that the decision in the case of Philip Lamoy vs. the United States is applicable to this case, and settles that the claimant has no cause of action. The petitioner makes a further claim, as follows : u That previous to Nadeau's enlistment for the war, to wit: on the 16th day of Sep- tember, 1776, Congress passed a resolution giving $20 bounty money, and granting bounty land of 100 acres to those who enlisted for the war and continued therein to the close of the war, or until discharged by Congress. And your petitioner further shows that he made ap- plication to the Commissioner of Pensions for said land, which appli- cation has been denied/' The allegation of the petitioner, therefore, is, that the Commissioner of Pensions incorrectly decided that Basil Nadeau was not legally en- titled to bounty land. By the resolution of September 16, 1776, Congress made provision for a bounty of $20 " to each non-commissioned officer and private soldier who should enlist to serve for the present war, unless sooner discharged by Congress." "To the officers and soldiers who shall so engage in the service and continue therein to the close of the war, or until discharged by Con- gress," certain quantities of land, the share of each non-commissioned officer and soldier being 100 acres. In order, therefore, to entitle the soldier to the bounty land he must have enlisted to serve during the war, and have continued -in the ser- vice to the close of the war, or until discharged by Congress. In the petition to Congress, which, with the accompanying papers, has been laid before us, it is stated that Basil Nadeau "on the 16th day of November, 1776, enlisted for the war in General Moses Hazen's regiment, (Congress regiment,) and continued to serve to the close of the war, the term of his enlistment, although the word omitted ap- pears at the end of his name on the rolls, in March, 1781." FRANCIS NADEAU. It appears that on the 26th day of June, 1819, the said Basil Na- deau was inscribed on the pension list at the rate of eight dollars per month. This was under the pension act of March 18, 1818. It does not, however, follow from this that he served to the end of the war, because a service of nine months entitled him to a pension. The evidence accompanying the petition to Congress is as follows : Basil Nadeau testifies that in the year 1776 he enlisted for the war, and served in Captain Ollive's company of Canadian volunteers, in Hazen's regiment, and continued in the service until the close of the war, when he was regularly discharged. There is also the testimony of Francis Nadeau, the son of Basil Nadeau, who testifies that he be- lieves that his father did enlist and serve as aforesaid. Alexander Ferriole testifies that he knows that Basil Nadeau did perform the military services stated in his affidavit. This is all the evidence going to show that Basil Nadeau served to the end of the war. In the letter of Mr. Waldo, Commissioner of Pensions, dated the 15th of April, 1853, and addressed to C. K. Averill, esq., there is the following statement : "Upon a thorough investigation of the rolls and records of this office, it is found that Basil Nadeau enlisted November 16, 1776, and that his name was omitted on the rolls in March, 1781, and was never after restored to the rolls, thereby furnishing the most conclusive evidence that he left the service at the last mentioned date, and never again returned to his regiment ; which fact is fully confirmed by the books of final settlement certificates, which show that the last certifi- cate for pay issued to Nadeau was for $13 30, dated January 1, 1782 r that sum being his monthly pay for January and February, 1781, his name being dropped from the rolls in March, 1781. u In one of your statements you say that certificates were issued to him as late as November, 1783. A careful re-examination of the books shows that no certificates for pay whatever issued in his name at any period of the year 1783. " The term i omitted,' when it appears on the rolls opposite to the name of a soldier, has no other signification than that the soldier left the service in consequence of sickness or disability of some kind without receiving a 'discharge,' and not afterwards returning to the service it became useless to continue his name on the rolls, and he is noted thereon 'omitted.' " The within patent for 200 acres of land, granted by the State of New York in April, 1830, to Basil Nadeau, under a special act of the legislature of that State, passed 25th April, 1829, recognizes Nadeau in no other character than that of a ' Canadian refugee,' and this grant of 200 acres of land was made thirty years after the grants by New York were generally made to those reported to that State by the officers appointed for that purpose under the 14th section of the act of the legislature of said State, passed May 11, 1784. This patent, therefore, furnishes no evidence whatever of Basil Nadeau's services to the close of the war in 1783." Unless, perhaps, in some extraordinary cases, which this does not appear to be, the evidence furnished by the rolls must be considered as conclusive, although, as it appears by the letter of General Dear- 6 FRANCIS NADEAU. born, of the 27th of July, 1803, the returns of the New York line subsequent to the year 1781 were destroyed by fire in November, 1802. The rolls for the year 1781 show that the name of Basil Nadeau was "omitted," and Mr. Waldo's letter shows the meaning to be attached to the word "omitted." We do not mean to say that he might not have served to the close of the war, but merely that the evidence does not authorize us to come to that conclusion. We have merely, on the one hand, the evidence of Basil Nadeau that he served to the end of the war, and the very indefinite statement of Ferriole that he knew that he did so serve; and, on the other hand, the evidence furnished by the rolls that his name was omitted. There is, also, the fact stated by Mr. Waldo that no pay certificate in his name was issued in 1783, the last certificate appearing on the books to have been issued on the 1st of January, 1782, for $13 30 for his monthly pay for January and February, 1781, his name being dropped from the rolls in March, 1781. Our opinion, therefore, is, that the claimant has no cause of action* 35th Congress, ) SENATE. ( Mis. Doc. 1st Session. \ I No - IN THE SENATE OF THE UNITED STATES. December 10, 1857. — Received. December 18 1857. — Referred to the Committee on Claims. The Court of Claims submitted the following REPORT. To the honorable the Senate and House of Representatives of the United States in Congress assembled : The Court of Claims respectfully presents the following documents as the report in the case of ELLEN MARTIN vs. THE UNITED STATES. 1. The petition of the claimant. 2. Certificate of heirship of claimant transmitted to House of Rep- resentatives. 3. Opinion of the Court adverse to the claim. By order of the Court of Claims. In testimony whereof, I have hereunto set my hand and affixed the v -, seal of said Court, at Washington, this seventh day of Decem- [SEAL. J A 1857> SAM'L H. HUNTINGTON, ^ Chief Clerk Court of Claims. To the honorable Judges of the Court of Claims of the United States : The petition of Ellen Martin, wife of John Levake, of La Colo, in the county of Huntingdon, in Canada East, one of the grandchildren and heirs-at-law of Francis Martin, deceased, begs leave respectfully 2 ELLEN MARTIN. to represent unto this honorable Court, that she is interested, as one of the grandchildren of the said Francis Martin, in a claim which the said Francis Martin had against the United States for services in the revolutionary war ; that her interest in said claim arises from the consideration that she is one of the grandchildren and heirs-at-law, with others of kin, of the said Francis Martin, who died intestate on or about the day of December, A. D. 1780, and in considera- tion of certain resolves of Congress hereinafter named. And your petitioner further represents unto this honorable Court, that the said Francis Martin was commissioned by Congress a lieuten- ant in the continental service in the revolutionary war, and served as such officer until his death as aforesaid. That by a resolution of Con- gress of the 24th day of August, 1780, it was provided that the reso- lution of the 15th of May, 1778, granting half pay for seven years to the officers of the army who should continue in service to the end of the war, be extended to the widows of those officers who have died, or should thereafter die in the service, to commence from the time of such officer's death and continue for the term of seven years ; or if there should be no widow, or in case of her death or intermarriage, the said half pay should be given to the orphan children of the officer so dying as aforesaid, if he should have left any, &c. And your peti- tioner avers that the said Francis Martin died when in the service before the end of the war, and at the time above stated, leaving a wife and children surviving him, but who are now dead, leaving issue. And your petitioner further shows to this Court, that the seven years' half pay provided for in the foregoing resolution has never been paid, but remains as a debt or claim due to the estate or representa- tives of the said officer from the United States. And your petitioner further states and avers that she presented her claim to Congress in 1854 for the commutation pay, which was re- ferred to the Senate Committee on Revolutionary Claims, who reported a bill, number of report 82, bill 186, 33d Congress, and recommitted January 5, 1855. All which proceedings she asks to be filed in this Court as a part of the case. Your petitioner, therefore, prays that this honorable Court will examine into the justice and equity of the said claim, and report a bill to Congress providing for the payment thereof, together with the in- terest thereon, unto the heirs or legal representatives of the said officer ; or such other order or bill as to your honors shall seem fit and proper to report in the premises. And your petitioner, as in duty bound, will ever pray. C. K. AVER1LL, Attorney for Claimant. Dated February 25, A. D. 1856. State of New York, 1 County of Clinton, \ Calvin K. Averill, of Rouse's Point, in the county of Clinton, in he State of New York, being duly sworn, doth depose and say that ELLEN MARTIN. 6 the petition, above by him subscribed, contains the truth, according to the best of his information and belief. C. K. AVERILL. Sworn and subscribed before me, this twenty-fifth day of February, A. D. 1856. M. VAN DERVORT, J. P. Court of Claims, December 13, 1856. Amended petition sworn to before me. SAM'L H. HUNTINGTON, Chief Clerk Court of Claims. Ellen Martin vs. The United States. Chief Justice Gilchrist delivered the opinion of the Court. The petitioner, who is now the wife of John Levake, represents that she is one of the grandchildren of Francis Martin, who died intestate in the month of December, 1780 ; that the said Martin was a lieutenant in the war of the revolution, and served in that capacity until his death ; that by a resolution of Congress of August 24, 1780, it was provided that the resolution of May 15, 1778, granting half pay for seven years to the officers of the army who should continue in service to the end of the war, be extended to the widows ot those officers who have died, or should thereafter die in the service, to commence from the time of such officer's death and continue for the term of seven years ; or, if there should be no widow, or in case of her death or intermarriage, the said half pay should be given to the orphan children of the officer so dying as aforesaid, if he should have left any, &c. The claimant avers that Martin died in the service before the end of the war, and at the time above stated, leaving a wife and children surviving, bat who are now dead, leaving issue. She also alleges that the seven years' half pay has never been paid, but remains due from the United States. The resolution of May 15, 1778, gives to all officers who should continue in service during the war one-half of their then present pay for the term of seven years after the conclusion of the war. The resolution of August 24, 1780, extends the benefit of the resolution of May 15, 1778, to the widows of those officers who had died, or should thereafter die in the service, the half pay to commence from the time of the officer's death, and to continue for seven years ; or if there were no widow, or in cas of her death or intermarriage, the half pay should be given to the orphan children of the officer, if he should have left any. Assuming for the present, for the sake of the argument, that under this last resolution grandchildren may be entitled to the half pay, it is necessary to examine the question whether the claim is barred by the resolutions and statute of limitation. 4 ELLEN MARTIN. It is very clear that the claim, even if it were presented hy the proper person, is barred. It is not alleged or proved that the claim was ever presented at the treasury prior to the 1st day of May, 1794. We have recently investigated this point at so much length in the cases of Chamberlain vs. The United States and Marnay vs. The United States, that it is unnecessary now to re-examine it. It is sufficient to say that the decisions in those cases must govern the present, and that the claim, by whomsoever presented, is now barred, and that there is no cause of action arising out of the services of Francis Martin now existing against the United States. 35th Congress, ) SENATE. j Mis. Doc. 1st Session. f - 1 No. 190. IN THE SENATE OF THE UNITED STATES. March 8, 1858. — Referred to the Committee on Claims. The Court of Claims submits the following REPORT. To the honorable the Senate and House of Representatives of the United States in Congress assembled : The Court of Claims respectfully presents the following documents as the report in the case of JACOB BIGELOW, ADMINISTRATOR OF FRANCIS CAZEAU, vs. THE UNITED STATES. 1. The petition of the claimant. 2. Claimant's brief. 4 3. United States Solicitor's briefs. 4. Opinion of Judges Blackford and Scarburgh, adverse to the claim. 5. Opinion of Judge Gilchrist, in favor of the claim. Many original papers in this case have been received from the Treasury Department. The most important are printed in the opinions of the judges. The originals are, by order of the Court, retained by the chief clerk, to be laid before the committees of Congress when desired, and then, by the requirement of the Secretary of the Treasury, to be returned to the Treasury Department, where they properly belong. By order of the Court of Claims. In testimony whereof, I have hereunto set my hand and affixed the ro _ -, seal of said Court, at Washington, this fourth day of March, [SEAL.J A D> 185g< SAM'L H. HUNTINGTON, Chief Clerk Court of Claims. 2 JACOB BIGELOW. To the honorable the Judges of the United States Court of Claims : The petition of Jacob Bigelow respectfully represents : That in the year 1844 letters of administration were granted to him by the orphans' court of the county of Washington, in the District of Colum- bia, on the personal estate of Francis Cazeau, late of Canada, which still remain in force and unrevoked ; and that he had previously received from the heirs of said Cazeau, residing in Canada, full powers to represent the claims of their said ancestor upon the government of the United States. Your petitioner shows, that Francis Cazeau was a merchant, of large fortune and great influence, residing in Montreal, at the commence- ment of the American revolution, and warmly espoused the cause of the revolted colonies, rendering them essential services by his labors, his influence, and his wealth, in consequence of which his property was confiscated, and he was reduced to poverty ; and that among the services rendered and the losses endured by him, entitling him to pecuniary remuneration from the government of the United States, were the following : In the beginning of the year 1777 Cazeau entered into a verbal agreement with General Arnold to furnish supplies to the American army, which was confidently expected in Canada in the spring of that year ; for which supplies he was to receive the customary market price, together with all expenses, and the usual and reasonable com- mission. He accordingly purchased eight thousand bushels of wheat, at a cost of $8,000, and had them ground into flour and packed into barrels, ready for the American troops ; but, in consequence of the failure of the American army to invade Canada, as expected, and Cazeau' s arrest and imprisonment for favoring the cause of the Americans, this flour was ruined, and became a total loss to him, with his expenses and commissions, amounting to $2,633 30. In the spring of the same year, in pursuance of the same agreement, Cazeau despatched three batteaux, laden with wines, spirits, cheese, hats, and other articles, suitable for the American army, costing $4,000, to Ticonderoga, to be delivered to any American officer com- manding on Lake Champlain, or the American general commanding at Ticonderoga. The American forces had vacated that post, but, whilst the boats were there awaiting further orders from Cazeau, made a descent upon the place, and captured and plundered the boats as enemy's property, thus occasioning a loss to Cazeau of the cost of these supplies, as well as of the expense of procuring and forwarding them, and the commission stipulated, amounting, together, to $1,404 43. About the same period Cazeau had incurred sundry expenses, amounting to $276 64, for procuring intelligence for the American army. And your petitioner further shows,- that the claims of Cazeau, on these and other grounds, having been presented to the American Con- gress, resolutions were passed by Congress, on the 18th of March, 1784, directing a settlement of the claims, recognizing the right to remuneration for supplies furnished to the American troops, allowing JACOB BIGELOW. 3 interest, at the rate of 6 per cent, per annum, from the year 1777, and directing Cazeau' s oath to be received in support of such other evidence as the circumstances of the case would admit of ; that, by a resolution of June 7, 1785, the commissioners for settling the accounts of the State of New York with the United States were directed to examine the accounts of Canadian refugees who had furnished sup- plies to the American army ; that in July, 1785, the commissioner, Mr. Barber, reported in favor of Cazeau' s claim for the supplies, commissions, and expenses, and his advances to procure intelligence, although he expressed the opinion that a special act of Congress was necessary to sanction payment for the commissions and expenses. Your petitioner further shows, that in January, 1817, after a full investigation, a committee of the Senate made a report in favor of the claim, upon the following statement thereof : The United States In account icith Fran. Cazeau, Dr. March, 1777. For 8,000 bushels of wheat $8,000 00 Ma}-, 1777. For 3 boats, with brandy, &c 4,000 00 1778, 1779, 1780. For advances, to gain intelligence 276 64 12,276 64 Interest on $12,276 64, from 1777, say forty years 29,463 60 Expenses and commission on wheat 2,633 30 Expenses and commission on brandy, &c 1,404 43 45,777 97 February, 1783. Cr. cash on account $1,000 00 Interest, say thirty-four vears 2,040 00 3,040 00 42,737 97 At the same session a bill was passed for the payment of the said sum of $42,737 97 to the legal representatives of Francis Cazeau. Your petitioner further shows, that the heirs of Mr. Cazeau have never received any of the benefit intended for them by this law, and he will proceed to state the causes of this unexpected result. Mr. Cazeau, despairing of receiving justice at the hands of the United States, went to France, and in the year 1807, in his sevent}^- eighth year, when broken down by grief and infirmity, was induced, by the practice of gross imposition upon him, to execute a power of attorney to one Corbeaux, to prosecute this claim for him, and an assignment to Corbeaux of three-fourths of the claim, for the nominal consideration of $200, 000, not one cent of which, however, was ever paid to him. At the same time a collateral agreement was executed between the parties, limiting the time for Corbeaux' s recovery of the claim to two sessions of Congress, and reserving to Cazeau the right of revocation. In less than five months after its execution, in April, 4 JACOB BIGELOW. 1808, Cazeau revoked the power of attorney, and had criminal pro- ceedings instituted against Corbeaux ; in consequence of which, the original power and assignment were surrendered to Cazeau, and annulled, and have ever since been in possession of himself and his heirs, until filed with their papers before Congress. Cazeau subse- quently notified the government of the United States that he still held the claim. Corbeaux, however, in the year 1808, procured from the American consulate, where they had been recorded, a copy of the assignment and power, which any one might have procured on pay- ment of the fees, and remaining quiet until the death of Cazeau, in 1815, proceeded then to concoct a scheme for defrauding the heirs. He executed a power of attorney to one James Grubb, in London, who substituted for himself one Stewart, and the latter came to this country, and by means of said copy, and copies of original papers, which he stated had been burnt in the Treasury Department, induced Congress to pass the act of 1817, aforesaid, in favor of the represent- atives of Cazeau, and drew the money thereby appropriated from the treasury. The original papers referred to by him, including the assignment to Corbeaux, had in fact been sent to General Mason, of Georgetown, with a power of attorney, in 1809. Whilst he awaited additional docu- ments, the war with Great Britain broke out, and it was deemed in- expedient and useless to press the claim, and Cazeau dying soon after, General Mason considered his power revoked, and two years afterwards delivered the papers to Cazeau' s heirs, by whom they have been presented to Congress. Your petitioner shows, as the strongest proof of Stewart's fraud, that no part of the money received by him has ever been paid to the heirs of Cazeau. Your petitioner further shows, that the payment to Stewart was made upon a mere copy of a copy, purporting on its face to he a copy, without, as far as appears, any inquiry as to the original, and certainly without any evidence, genuine or spurious, to account for its non-pro- duction, without any notice to the heirs of Cazeau, and without any default on their part, after the assignment to Corbeaux had been an- nulled and surrendered, and the power of attorney had been revoked in fact by Cazeau in his lifetime, and in law by his death, and the fact of his death had been communicated to the government by Stew- art himself. Your petitioner shows that both the fact of its being a copy, and the date of the instrument presented by Stewart, (its pre- sentation being ten years after its date,) were sufficient to excite sus- picion, and put the officers of the treasury upon inquiry ; and he is advised that their payment of the money was in their own wrong, and no discharge to the government, and that he is entitled both upon the original merits of the claim, as founded on a valid and executed con- tract, and under the act of Congress of March 3, 1817, adjusting and liquidating the claim to the whole amount appropriated by that act, with interest, with the exception to be presently mentioned. Your petitioner shows that shortly after the money was paid to Stewart, one of the heirs of Cazeau, having accidentally heard of the JACOB BIGELOW. 5 passage of the act of 1817, came to Washington to draw the money, and thus discovered the fraud practiced upon them ; that ever since said date they and your petitioner have been earnestly seeking to recover this and other claims of Cazeau from the government ; that in the year 1836 this claim was referred, by a resolution of the Senate, to Virgil Maxcy, then Solicitor of the Treasury, and a full and favor- able report made upon it by him ; that in June, 1844, a bill was passed for the payment of one-fourth of the amount appropriated by the act of March 3, 1817, with interest from May, 1818, amounting to $27,352 32, which sum was received by your petitioner; that favorable reports upon the residue of the claim were made in the House of Representatives in 1837, 1846, and 1848, to which reports, as well as that of January 30, 1817, in the Senate, your petitioner refers for a more full history of the claim. And your petitioner further shows that no part of the claim has been assigned by him, or the heirs of Cazeau, to any other person, but it belongs wholly to the estate of Cazeau. And your petitioner states the claim now presented by him as follows : Amount appropriated by the act of March 3, 1817 $42,737 97 Interest from May, 1818, to 1844 66,671 31 109,409 28 Cr. then paid 27,352 32 82,056 96 Interest on $42,737 97, from June 15, 1844, say to June 15, 1855 28,207 06 Amount now due 110,264 02 Additional interest till paid Respectfully submitted. • J. BIGELOW, Administrator on the estate of the late Francois Cazeau. District op Columbia, \ County of Washington. ] On this first day of August, A. D. 1855, before the subscriber, a justice of the peace in and for the county aforesaid, personally appears Jacob Bigelow, and makes oath, according to law, that the facts stated in the foregoing petition are true, to the best of his knowledge and belief. THOMAS DONOHO, Justice of the Peace. JOHNSON & COX, Attorneys for Petitioner. 6 JACOB BIGELOW. UNITED STATES COURT OF CLAIMS. THE PETITION OF JACOB BIGELOW, ADMINISTRATOR OF FRANCIS CAZEATJ. Brief of Claimant. The facts of this case sufficiently appear in the petition. This is in the nature of a suit against the United States, in which the petitioner makes out his case by producing the act of Congress of March 3, 1817, c. 243, directing payment of $42,737 97 "to the legal representatives of Francis Cazeau, late merchant at Montreal, or to his or their assignee or attorney, or other person lawfully entitled to receive the same, and filing his letters of administration, showing him to be the legal representative of Cazeau. " The United States defend, on the ground of payment to one author- ized to receive, under an assignment and power of attorney, executed by Cazeau in his lifetime. In answer to this : 1st. It is contended that such alleged instrument, if it existed in force at the time of Cazeau' s death, became thereby inoperative; so that thereafter there was no assignee, or attorney, or other person, lawfully authorized to receive, under said instrument. That the death of the principal operates to revoke a power of attor- ney, will not be denied. — (Hunt vs. Rousmanier, 8 Wheat., 174.) But it will be said that the assignment survived and coupled the power with an interest, which prevented it from expiring. To this it is answered, that an unliquidated claim against the United States is not the subject of an assignment ; that such assignment can transfer no interest, and can only be regarded as an authority to re- ceive the money — a naked authority, which expires upon the death of the principal. — (See United States vs. Robeson, 9 Pet., 319.) 2d. It is denied that any valid assignment or power of attorney existed even at the time of Cazeau' s death, much less at the time of the payment. The burden of proof to show the existence of such an instrument is on the United States. How can they show it ? They offer in evidence, we suppose, the voucher upon which the payment was made, and which is certified by the American consul at Paris, in 1807, to be a true copy of a record in his office. We object, that a copy is not admissable j that the original must be produced, or its absence satisfactorily accounted for, which cannot be done by the government. This is a well-settled rule of law. — (1 Greenl. on Ev., § 82, 86, 87.) Suppose I owe money to A B and C D presents to me a copy of a draft on me, in his favor, from A B upon which I pay the money. In a subsequent suit against me by A B for his debt, could I, under the plea of payment, offer in evidence the copy and the payment upon it ? What would be thought of a bank paying upon a copy of a check by a depositor? And how much more inadmissible, as a defence, would the payment be, in the cases supposed, if, as in this, JACOB BIGELOW. 7 the copies do not even purport to be transcribed from the original, but to be copies of a copy in the hands of a third party, to which any one may have access ! And how utterly indefensible the act of payment, when, in addition, the copies bear date nine years before presentation ! It is too plain for argument, that payment in such cases would be made to one not authorized to receive, and would be no discharge against the real creditor. That the payment was made in good faith, and without suspicion of fraud, would obviously not better the case ; for in no instance can a creditor be prejudiced by deceptions practiced on his debtor by third persons, without his knowledge or privity, and without negli- gence on his part. But, in fact, this would be a case of the grossest negligence, and legal notice of fraud, on the debtor's part. The very ground of the rule excluding secondary evidence is, that the withholding of better evidence raises a presumption of fraud. — (1 Greenl. on Ev., § 82, citing Tayloe vs. Riggs, 1 Pet., 591.) The production of a copy, then, in this case, without accounting for the original, was itself legal evidence and notice to the government of fraud. This, added to the remote date of the instrument, was sufficient to put the government upon inquiry and excite suspicion, and to effect them with the consequences of neglect. > Additional evidence of gross negligence on the part of the govern- ment is found in the fact that, at the time of the payment, no legal evidence was produced even to show this copy to be a true copy of the original; nor could that be proved now, unless by the claimant's admissions. There is no law either authorizing or directing such instruments to be recorded in the American consulate ; consequently, neither that record, nor copies from it, would be any evidence in law of the contents of the original ; and the consul's certificate is no more than the certificate of a private person, as to the contents of a book in the consul's office. But, failing to prove the existence of the assignment and power otherwise, the government offer, we suppose, the claimant's admis- sions. What do they amount to, taken together, as they must be ? The claimant produces and files a paper, purporting to be an original assignment and power from Cazeau to Corbeaux, with which the copy corresponds. If the government resort to this to prove the fidelity of the copy, then they admit the original to be in possession of Cazeau' s representatives, and all the consequences which, as we shall hereafter see, flow from that fact. The Secretary of the Treasury seems to doubt whether this was filed by Cazeau' s heirs. It is endorsed, " Annulled and given up." Stewart would hardly have filed it, or the money been paid on it with this endorsement ; otherwise, the case is still stronger for the claimant. But we have Mr. Maxcy's report and the petitioner's affidavit settling the matter. The Secretary also speaks of it as signed in duplicate. This is not the fact. There is no evidence of it. 8 JACOB BIGELOW. The admission by the claimant of the original existence of an assign- ment, in fact, is qualified by a denial of its validity, its legal existence, at any time — still more of such legal existence at the time of Cazeau's death, or of the payment made by the United States. The whole admission must be taken together — (1 GreenL, § 201) — and, so taken, it is not an admission of that which the government must prove, viz : the legal existence of the assignment at the time of payment. It may be true that the Court may consider all parts of the admis- sion ; may believe part and disbelieve part ; may believe the admis- sion and disbelieve the denials. If so, the United States have pro- duced some admissible evidence, and the question will be as to its weight. It was not necessary to make any admission. The heirs of Cazeau might have denied the existence of any assignment, and the govern- ment never could have proved it. The candor of the admission made gives credibility to the denial of the validity of the assignment, and the assertion of its annulment and surrender. If it existed in force, Stewart ought to have had it, or to have proved its existence and accounted for its non-production. He ought to have shown some reason why Corbeaux' s claims were not presented in Cazeau's lifetime, or for nine years after the date of the alleged assignment. His failure to do all this irresistibly fortifies the claimant' s denials, a,nd gives to his admission almost the force of proof in his favor. Nor do the facts make out a case of neglect on Cazeau's part, ena- bling Corbeaux to practice this deception upon the government. He did nothing to put it in Corbeaux' s power to mislead. He did not give the copy or know of its being given, nor could he have prevented it. He was not bound to anticipate that Corbeaux would attempt so bold a fraud, still less that the government Avould be imposed on by so shallow a device, and, consequently, was not bound to forewarn them against it. It may be confidently asserted, then, that the government utterly fail to sustain their defence of payment ; that they do not even pro- duce a particle of competent much less sufficient evidence, excepting, perhaps, a supposed admission, which has no force at all. But the claimant produces positive evidence to disprove the defence of the government. First, he produces the original instrument of assignment, the iden- tity of which has never been questioned. Prima facie, the claimant's possession of it is lawful. It is presumptive evidence, therefore, that Corbeaux was not entitled to it, and, consequently, that it was either never delivered, which is essential to give it force, or that it was after- wards annulled and surrendered. — (1 Greenl. on Ev., § 34, 38.) We have, then, the presumption of fraud, the presumption against the existence of a valid original, raised by the presentation of a copy only by Stewart, nine years after its date, without accounting for the original, fortified by the presumption of concealment and surrender, raised by the claimant's possession of the original. This makes assu- rance doubly sure. It has been objected that we ought to show a judicial cancellation JACOB BIGELOW. 9 of the instrument ; in reference to which, it suffices to challenge the production of a single authority or principle of law to countenance such a position. What more natural, usual, or legal method of an- nulling a contract, than to surrender it to the party bound by it ? What would be thought of Cazeau, with the original in his possession, and no legal evidence of its existence in anybody else's hands, filing a bill to set it aside, or to set aside a copy of it in somebody's pos- session? Cazeau did proceed against Corbeaux criminally ; but, as appears from the record of that proceeding on file, there could be no order for the cancellation of the instrument in a criminal proceeding ; but it was probably surrendered in consequence of that proceeding. Next, we have the fact that Cazeau did notify the government, immediately after the date of the alleged assignment, that he still held the claim. — (See Report in House Doc. No. 355, 28th Cong., first session.) In the next place we have the facts set forth in the report upon this claim, of Virgil Maxcy, Solicitor of the Treasury in 1836, (see House Doc. 270, 30th Cong., first session,) and the proofs referred to in said report, viz : That no part of the consideration stipulated in the assignment was paid to Cazeau ; that, by a collateral, contempo- raneous agreement, the power of attorney was to last only during two sessions of Congress ; that fraud and imposition were practiced on Cazeau ; that, in less than five months after its execution, he revoked the power of attorney and instituted criminal proceedings against Corbeaux, (in consequence of which, doubtless, the instrument was surrendered ;) that, as early as 1809, Cazeau sent all his original papers, with a power of attorney, to General Mason; that Cazeau' s heirs never received any of the money ; and, finally, the falsehoods of Stewart's statements to Congress — all going to establish conclusively the fraud of Stewart and Corbeaux, and to confirm those evidences of it which ought to have prevented the payment to Stewart. As to the effect of payment to the wrong person. — (See Opinions Att. Gen., Roger's Case, v. 5, p. 183, and Smith's Case, v. 4, p. 298 ; Tiernan vs. Rescaniere's adm'rs, 10 Gill and J., 225; Chapman vs. Williams, 7 H. and J., 157.) As to interest : The act creating the Court of Claims assumes that individuals have claims of right against the United States. There must be, then, some rule of right, binding the government. It would seem to be the same that regulates the dealings of individuals ; for, after all, a contract with the government is but a contract with individuals. The highest evidence of what is right between individuals is the general law of the land. By the general law of this country, every creditor is enti- tled to interest from the day when his principal debt is payable, if it be a liquidated demand. — (1 Hare & Wallace's American leading Cases, pp. 341-351.) It is considered due from States. — (Respub. vs. Mitchell, 2 Dall., 101 ; Milne vs. Rempub., 3 Yeates, 102 ; Adams vs. Beach, 6 Hill's N. 10 JACOB BIGELOW. Y. Rep., 272 ; and from the United States, U. S. vs. Cogswell, 3 Sum- ner, 204 ; Thorndike vs. United States, 2 Mason, 1.) Usage may be resorted to, to construe an express or implied con- tract, but not to ascertain rights growing out of default of perform- ance. The contract does not contemplate any default, and is not therefore made with reference to any usage determining the conse- quences of default. And an usage which is binding must be uniform, compulsory on all, and reasonable. — (2 Greenl. Ev., §250, 251.) The usage alleged in this case would be one-sided, arbitrary, and unreasonable, and is not uniform. But, in fact, it is not the usage of the government to pay no interest on claims. Out of 1,808 claims allowed between the revolution and April 11, 1836, it appears 1,754 were paid with interest, and only 54 without ; and of the latter, 19 passed the House of Representa- tives with interest, and many have since been paid with interest. — (See resolutions, laws,