No. 3.

Extract from resolutions of Congress, of the 16th and 18th of Septem ber, 1776, and the 12th of August, and 22d of September, 1780.

"Resolved, That such lands," (continental bounty lands) "are to be provided by the United States, and whatever expense shall be necessary to procure such lands, shall be paid, and borne by the States, in the same proportion as the other expenses of the war."

No. 4.

Extract from an act of Virginia Assembly of May, 1779, entitled "An act concerning officers, soldiers, sailors and marines."

"All general officers of the army, being citizens of this Commonwealth, and all field officers, captains, and subalterns, commanding, or who shall command, in the battalions of this Commonwealth on continental establishment, or serving in the battalions raised for the immediate defence of this State, or for the defence of the United States; and all chaplains, physicians, surgeons, and surgeons' mates, appointed to the said battalions, or any of them, being citizens of this Commonwealth, and not being in the service of Georgia, or of any other State, provided Congress do not make some tantamount provision for them, who shall serve henceforward, or from the time of their being commissioned, until the end of the war; and all such officers who have, or shall become supernumerary on the reduction of any of the said battalions, and shall again enter into the said service, if required so to do, in the same, or any higher rank, and continue therein until the end of the war; shall be entitled to half-pay during life, to commence from the determination of their command or service.

No. 5.

Between Christopher Roane, Frederick Woodson, William Armistead, Thomas Quarles, John Fleet, Dudley Digges, Nathaniel Littleton Savage, William Graves, Samuel Tinsley, and Thomas Carter, officers of the State line, appellants, and James Innes, Attorney General, and Jaquelin Ambler, Treasurer, defendants, and John Pendleton, Auditor for Public Accounts, appellee.

The plaintiffs, who were officers in one of the legions raised for defence of the Commonwealth, by an act passed in the spring session of 1781, continued in service, from the time of entering into it, until February, 1783, when they were discharged by the Governor, after which time they were not required again to enter into service.

They, supposing that officers of the Commonwealth's battalions, who were supernumerary by reduction of their battalions before the end of the war, if they were not required to enter into service again, were entitled to half pay during life, by the words of the act of General Assembly, passed in the May session of 1779, concerning. officers, soldiers, sailors, and ma

rines, and also supposing themselves, by the act of 1790, giving compensation of half pay to certain officers of the State line entitled to the same compensation as the law allowed to officers of the battalions, exhibited their claims for half pay, or in lieu of it, the commutation of five years' full pay, to the auditor for public accounts, who disallowed their claims.

From his disallowance the plaintiffs appealed, separately, each of them stating his case in a petition to the judges of the district court, holden in Richmond.

That court referred the case to the general court, who certified their opin ion in these terms;

“That, under the act of May, 1779, the general officers, field officers, captains, and subalterns, physicians, surgeons, and surgeons' mates, then on duty, or who should afterwards be placed on duty, in the battalions at that time raised for the continental or State service, were entitled to half pay, unless they failed to serve until the end of the war, or being supernumerary, refused to enter again into the service, on a command to that effect, or unless they were in the service of Georgia or another State, or provided for in this respect by Congress, that the respective laws under which they have been appointed, and the act of 1790, entitle all such persons as are described in the act of 1779, who belong to the State line, and who have been appointed since the passing of the act of 1779, to the like allowance of half pay, provided they served to the end of the war, or being supernumerary, did not refuse to enter again into the service, on a command to do so, and that the troops being disbanded in the month of February, 1783, and the preliminary articles of peace being signed before that period, the officers ought to be considered to have served to the end of the war.”

Whereupon the district court adjudged the plaintiffs entitled to the commutation claimed by them, and ordered the auditor to issue to each petitioner a certificate accordingly.

From which judgment, on the prayer of the Attorney General for the Commonwealth, an appeal was allowed; and the court of appeals on the 2d day of May, 1792, delivered the following opinion in the case of one of the petitioners:

"That under the act of assembly, passed in May, 1779, entitled an act concerning officers, soldiers, sailors, and marines, and all subsequent acts made respecting them, only such of the general officers of the State army, being citizens of the Commonweaith, and such of the field officers, captains, and subalterns, serving in the battalions raised for the immediate defence of this State, and such of the chaplains, physicians, surgeons, and surgeons' mates, as were appointed to the said battalions, being citizens of this Commonwealth, and not being in the service of Georgia, or any other State, and for whom Congress hath not made any adequate provision, and only such of them as actually served thenceforward, or from the time of their being commissioned until the end of the war, unless restrained by being prisoners of war, on parole, or otherwise, and also, only such of the said officers who became supernumerary on the reduction of the said battalions and again actually entered into the said service, in the same or higher rank, having been required so to do, and continued therein until the end of the war, are entitled to half pay during life, under the said acts, to commence from the determination of their command or service, when the same was duly signified to them by the Governor, or executive of this State, and their regiments disbanded in pursuance thereof, after the preliminary articles of peace be

tween America and Great Britain were signed and notified to the executive of this State, which appears by the proceedings in council in evidence in this case to have been on the 19th day of April, 1783, and the army disbanded in pursuance thereof on the 22d of the said month, and it appearing by the petition of the appellee that he was a supernumerary officer, and discharged as such, on the 9th day of February, 1783, before the said preliminary articles were notified, and the legion to which he belonged disbanded as aforesaid, and that he did not again enter into the service and continue therein until the end of the war, this court is of opinion that he is not entitled to half pay for life, and that the opinion of the general court, and order of the district court thereon, are erroneous;" therefore

The order of the district court was reversed, and the disallowance by the Auditor affirmed; to which was added this entry; "but this judgment is not to bar or prejudice any future claim of the appellee, made on fuller proof to the Auditor."

Several of the parties, whose claims were decided by the court of appeals, not to be maintainable, nevertheless, exhibited the same claims again to the Auditor, supposing the entry subjoined to the judgment of the reversal to have reserved to them liberty to do so.

The claims were again disallowed by the Auditor, and from that disallowance the claimants appealed to the high court of chancery, prosecuting their appeal by way of original bill against the Attorney General, the Treasurer, and the Auditor, who were made defendants, and of whom the last only answered, disclosing, however, nothing more than what appeareth in the foregoing state of facts. The cause came on before the high court of chanceThe court at first ry, by consent of parties, to be heard in October, 1793.

hesitated to interpose in the matter; first, because it seemed proper to be brought before the common law court; and, secondly, because the claims, which the court of appeals permitted to be made again to the Auditor, were permitted to be made on fuller proof; but no proof was now exhibited more than, or different from, what was exhibited before the court of appeals. The first difficulty was removed by the answer of one defendent; which did not except to the jurisdiction of the court of equity, and by the consent of the other defendants that the cause should be heard on its merits by that court. The other difficulty was removed by this consideration: the facts stated by the claimants in their petitions of appeal to the district court, were all admitted to be true by the Attorney General, who was the proper party to controvert the facts if they had not been true, and whose admission is equivalent to the fullest proof.

Fuller proof being, therefore, impossible, those terms in the reservation subjoined to the reversing judgment, were supposed to have been used inadvertently, and the reservation was understood in the same sense as if it had not contained them; and the court of chancery delivered the following opinion: "That by the words in the act of General Assembly of the May session, in the year 1779, entitled, an act concerning officers, soldiers, sailors, and marines, 'officers who have or shall become supernumerary on the reduction of battalions, and shall again enter into the service if required so to do, and continue therein until the end of the war, shall be entitled to half pay during life, to commence from the determination of their command of service.' The officers intended to be provided for, were of two classes; one, those who had continued in the service until their battalion was reduced, and their command determined, and were not required to enter again into the service;

and the other, those who, after the reduction of their battalion, were required to enter, and did enter, again into the service, and continued in it until the end of the war; and that the said words ought to be interpreted tbus: 'officers who have, or shall, become supernumerary, shall be entitled to half pay during life, to commence from the determination of their command, if they were not required to enter again into the service and refused to do so; and officers who have, or shall become supernumerary, and shall again enter into the service, if required so to do, shall be entitled to half pay during life, to commence from the determination of their service;' because, by any other interpretation, the words, 'command or,' in the last member of the sentence, would not only be superfluous, but have no meaning; and because the words, although they may be interpreted in another sense, ought to be interpreted in a sense most beneficial for the officers whom the General Assembly were inviting into their service by offers of gratuities the most liberal in their power to make. But this court is of opinion that, by the latter part of the act of General Assembly, made in the year 1790, entitled, 'An act giving compensation of half pay to certain officers of the state line, such of the petitioners as belong to the first of the two classes before mentioned, are so distinguished from officers of the other class, that the petitioners are not entitled to half pay by that part of the act, although the court cannot believe that the General Assembly intended to deprive them of it, being unable to divine any reason for the distinction. Nevertheless, this court is of the opinion that, by the former part of the last mentioned act, the officers, who were discharged by proper authority, and not required to enter again into service after the 30th day of Nevember, in the year 1782, that is, in February following, are entitled to their half pay no less than those who were not discharged before the 22d day of April, in that year, to whom the compensation for half pay hath been allowed; because the former may be said, with as much propriety as the latter, to have continued in the service until the end of the war, since they were in the service on the said 30th day of November, when the provisional articles between the United States of America and the King of Great Britain, were done, by the seventh article whereof it was agreed that there should be a peace between those parties and their respective citizens and subjects, and that all hostilities should cease; and by the ninth article, restitution was agreed to be made of whatever might be conquered by the arms of either from the other before the arrival of those articles in America; whereas if the end of the war was not before the definitive treaty of peace between the same parties, which was done 3d September, 1783, those officers who were discharged before that day, that is, those who were discharged on the 22d day of April, 1783, had not served until the end of the war;" and decreed the Auditor to allow half pay for life, or, in lieu thereof,* five years commutation to such of the plaintiffs as should appear to be entitled thereto according to the foregoing opinion, from which decree the defendants, on their prayer, were allowed an appeal.

In justification of this opinion, which differeth from that of the court of appeals, upon the latter are submitted these remarks.

This opinion of the court of appeals consists of these propositions:

1. Officers who continued in the service until the end of the war are entitled to half pay during life, to commence from the determination of their

service.

This alternative was inserted because the court of appeals as was said, and seemed ad mitted, had allowed it in some cases, when the claims for half pay were sustained,

2. Officers who were restrained by being prisoners of war or on parole, or otherwise from continuing in the service until the end of the war, are entitled to half pay during life, to commence from the determination of their command. This proposition is not explicitly stated, but is implied in the opinion.

3. Officers who became supernumerary on reduction of their battalions, and again entered into the service, having been required so to do, and con tinued therein until the end of the war, are entitled to half pay during life, to commence from the determination of their service.

4. Such supernumerary officers as did not enter, although they were not required to enter again into the service, are not entitled to half pay during life. This proposition follows from the word "only" in that part of the opinion from which is formed the next preceding proposition.

5. Officers to be entitled to half pay during life, must have continued in the service until the signature of the provisional articles-here called the preliminary articles of peace between the United States of America and the King of Great Britain-was notified to the Governor of the Commonwealth, and duly signified by him to the officers.

The first proposition is admitted by all, and upon it partly is founded the decree of the high court of chancery, as is there explained.

The second proposition may be doubted until the statute can be shewn, by which half pay for life was promised to those officers who were hindered by being prisoners of war, or by being on parole, or were hindered otherwise from continuing in the service until the end of the war. But if the proposition be true, the conclusion from it is thought to be opposite to the conclusion drawn by the court of appeals: for if an officer hindered from continuing in service until the end of the war, by being a prisoner or on parole, or hindered otherwise, be entitled to half pay during life, a supernumerary officer who, not being required to enter again into the service, is hindered from continuing in the service until the end of the war, no less effectually than the officer who is an immured captive, or is enlarged on parole, seems no less entitled.

The third proposition is true. But the plaintiffs cannot entitle themselves by it, because if they were properly supernumerary officers, they did not, after they became so, enter again into the service.

The fourth proposition is founded, as is conceived, in a misconstruction of

the act of 1779.

Two arguments are stated in the decree of the court of chancery to prove that the act ought to be so expounded as to entitle the supernumerary officers who were not required after the reduction of their battalions, to enter again into the service to half pay during life; first, that otherwise the words "command or," in the act, would have no meaning, as will be manifest to one who reads the act without these words, for he will see if they be left out it hath exactly the meaning which the court of appeals have given to it with them: whereas the words "command or," applied to supernumerary officers not required to enter again into service, are significant; secondly, that the act, if it could be expounded in two senses, ought to be expounded in the sense which is most beneficial to the officers, for the reason there mentioned. To which, after premising that the act of 1779, in its nature, is a compact between the Commonwealth and the officers, the author of that decree now adds, thirdly, the parties entering into the compact may reasonably be supposed to have treated and concluded in some such form as this: