Commonwealth. We agree to allow you officers who will serve us in our army until the end of the war, half pay during your lives, to commence from the determination of your service.

Officers. We are willing to serve for the stipend you offer; but you may deprive us, or some of us of it, by disbanding your army, or part of it, before the end of the war.

Commonwealth. If we disband our army or part of it before the end of the war, we will allow to you who thereby become supernumerary, half pay during your lives, to commence from the determination of your respective commands; but upon this condition, which no doubt you will think just, that you shall enter again, if we require you to enter again into our service, and continue therein until the end of the war, in which last case your half pay shall commence from the determination, not of your command but of your service.

Officers. To all this we agree, and accordingly we enter into your service. Whether the act of 1779 ought not to be expounded, as such articles would have been expounded, is referred to the candid and judicious; fourthly, where one party hindereth another from performing a duty by which he would earn a reward, the hindrance is in fraud of the party willing to perform, from which fraud he who practiseth it ought not to derive benefit, nor ought the other to lose that to which he would otherwise have been entitled. And, in this case, the Commonwealth hindered the officer from performing the duty by which he would have earned a reward; and, fifthly, the words of the act, "if being required again to enter, they again do enter into the service, and continue in it until the end of the war, seem the denunciation of a penalty for breach of a duty, the half pay would be earned by service before the officers became supernumerary; but to secure their future service, if it should be requisite, they should forfeit the half pay if they failed afterwards to perform another duty enjoined. This duty was again entering into the service, if they were required, and continuing in it until the end of the war; but if they were not required again to enter into the service, no duty was enjoined to be performed, and consequently, by failure to perform the duty, no forfeiture was incurred.

Therefore that the plaintiffs, if they had been officers in the battalions for whom the act of 1779 provided, upon the supposition that they were supernumerary officers, would have been entitled to half pay, is thought to be evinced.

But they are believed not to have been comprehended in that act, nor to be entitled to the half pay which it allowed to officers in the battalions, unless it be by the act passed in 1790, giving the compensation of half pay to certain officers of the State line.

The words of that act are, "that the same compensation of half pay should be extended to those officers of the State line, who continued in actual service to the end of the war, as was allowed to the officers of the continental line; and, also to those who became supernumerary, and being afterwards required, did again enter into actual service, and continued therein to the end of the war."

The act, in the latter part of it, includeth supernumerary officers, who did again enter into actual service only, and consequently doth not include the plaintiffs, who confess themselves not to have entered again into the service.

If then the plaintiffs be entitled to half pay, it must be by the former part of this act, that is, they must have been not supernumerary officers, but offi

cers who continued in actual service to the end of the war: so that whether this can be predicated of them, is the question which will lead us to consider the fifth proposition of the court of appeals.

The plaintiffs are admitted to have been in actual service before and on the 30th day of November, 1782, when the provisional articles were done, and to have continued in the service until February afterwards, when they were discharged by order of the executive.

If the war ended when those articles were done, the plaintiffs, by the terms of the act, by the terms of the compact, if the act of 1779 be in the nature of a compact, and by the terms of the act of 1790, were entitled to their half pay, to commence from February, 1783, the determination of their actual service: the provisional articles prove the war to have ended by that act.

The articles, indeed, were not to be conclusive, until the terms of a peace should be agreed upon between Great Britain and France; but when those terms were agreed upon, the articles were conclusive, and they were an act of the day on which they were done, not of the day on which the terms of peace between Great Britain and France were agreed upon. If the terms of peace between Great Britain and France had not been agreed upon, the provisional articles would not have been in force from the beginning; this being true, its converse, if the terms of peace between Great Britain and France were agreed upon, the provisional articles were in force from the beginning, must also be true; yea, the court of appeals theirselves, in this opinion, admit the war to have ended by those articles. For if the war was not ended by the provisional articles, it was not ended before the definitive treaty in September, 1783; but the court of appeals have allowed those officers who were in service until April, 1783, to be entitled to half pay, and therefore the war to have ended before the definitive treaty, and consequently to have ended when the provisional articles were done.†

If the war was ended by the provisional articles, why are not the officers who continued in the service until the signature of those articles, including the plaintiffs, entitled to their half pay? because, say the court of appeals, officers, to be entitled to half pay, must have continued in the service until the signature of the articles was notified to the Governor, and signified by him to the officers. Did the Commonwealth agree with the officers that they should not be entitled to half pay, unless they would continue in service until such notification and signification? Do the statutes declare so? When the statutes had enacted that officers, who continued in service until the end of the war, should receive half pay during life, can any court, without assuming the power to change the law, determine that the

No man will pretend that the proclamation by the Governor of Virginia, one of the thirteen confederated States, could end the war which was prosecuted by the British King against all those States united; and if the war ended, not by the Governor's proclamation, it must have ended by the provisional articles or the definitive treaty.

This is not a mere argumentum ad homines, but is conclusive in this case; the Su. preme Court, by determining those officers to be entitled, who did not continue in the service until the definitive treaty, having implicitly decided the war to have ended before.

By this doctrine, the officer who was unluckily discharged a few weeks, or a few minutes, before official notification of the peace to the executive, instead of being gratified by enjoyment of those delectable things, the promise of which had tempted him to enter into the service of the Commonwealth, and encouraged him to continue so long as they would permit him to continue, in their service, with the thirst and appetite of Tantalus,

Nec bibit inter aquas, nec poma natantia carpit.

PETRONIUS ARB. ·

officers shall not receive half pay, although they shall have served until the end of he was, unless they sail moreover hav continued in the service until a notification to the Governor that the war was ended; and this, too, notwithstanding the officers continued in service until they were discharged by the Governor, and were not required to enter into it again? And hath any court power to change the law? If these questions be answered negatively, as probably they will be, the principal question, namely, whether officers, who continued in service until the provisional articles were done, and afterwards until they were discharged, be entitled to half pay, must be answered affirmatively.

No. 6.

Extracts from an act of Congress, entitled "An act making provision for the debt of the United States;" passed Aug. 4, 1790.

"And, whereas, a provision for the debts of the respective States, by the United States, would be greatly conducive to an orderly, economical, and effectual arrangement of the public finances:

That a loan be proposed to the amount of twenty-one million and five hundred thousand dollars, and that subscriptions to the said loan be received at the same times and places, and by the same persons, as in respect to the loan herein before proposed concerning the domestic debt of the United States; and that the sums which shall be subscribed to the said loan, shall be payable in the principal and interest of the certificates or notes, which, prior to the 1st day of January last, were issued by the respective States, as acknowledgments or evidences of debts by them, respectively, owing; except certificates issued by the Commissioners of Army Accounts, in the State of North Carolina, in the year 1786.

Provided, That no greater sum shall be received in the certificates of any State than as follows, that is to say: In those of New Hampshire, three hundred thousand dollars; in those of Massachusetts, four million dollars; in those of Rhode Island and Providence Plantations, two hundred thousand dollars; in those of Connecticut, one million six hundred thousand dollars; in those of New York, one million two hundred thousand dollars; in those of New Jersey, eight hundred thousand dollars; in those of Pennsylvania, two million two hundred thousand dollars; in those of Delaware, two hundred thousand dollars; in those of Maryland, eight hundred thousand dollars; in those of Virginia, three million five hundred thousand dollars; in those of North Carolina, two million four hundred thousand dollars; in those of South Carolina, four million dollars; in those of Georgia, three hundred thousand dollars.

And provided, That no such certificate shall be received, which from the tenor thereof, or from any public record, act, or document, shall appear, or can be ascertained, to have been issued for any purpose, other than compensations and expenditures for services or supplies towards the prosecution of the late war, and the defence of the United States, or some part thereof, during the same.'

"That so much of the debt of each State as shall be subscribed to the said loan, and the moneys (if any) that shall be advanced to the same pursuant to this act, shall be a charge against such State, in account with the United States."

No. 7.

An act to provide more effectually for the settlement of the accounts between the United States and the individual States.

Be it enacted, &c. That a board, to consist of three commissioners, be, and hereby is established, to settle the accounts between the United States and the individual States; and the determination of a majority of the said commissioners on the claims submitted to them, shall be final and conclusive; and they shall have power to employ such number of clerks as they may find necessary.

That the said commissioners, shall, respectively, take an oath or affirmation, before the Chief Justice of the United States, or one of the associate or district judges, that they will faithfully and impartially execute the duties of their office. And they shall, each of them, be entitled to receive at the rate of two thousand two hundred and fifty dollars per annum, payable quarter yearly at the Treasury of the United States, for their respective services.

That it shall be the duty of the said commissioners to receive and examine all claims which shall be exhibited to them, before the first day of July, 1791, and to determine on all such as shall have accrued for the general or particular defence, during the war, and on the evidence thereof, according to the principles of general equity (although such claims may not be sanctioned by the resolves of Congress, or supported by regular vouchers,) so as to provide for the final settlement of all accounts between the United States and the States individually; but no evidence of a claim heretofore admitted by a commissioner of the United States, for any State or district, shall be subject to such examination; nor shall the claim of any citizen be admitted as a charge against the United States, in the account of any State, unless the same was allowed by such State before the 24th day of September, 1788.

That it shall be the duty of the said commissioners to examine and liquidate to specie value, on principles of equity, the credits and debits of the States already on the books of the Treasury, for bills of credit, subsequent to the 18th of March, 1780.

That the commissioners shall debit each State with all advances which have been or may be made to it by the United States, and with the interest thereon, to the last day of the year 1789; and shall credit each State for its disbursements and advances, on the principles contained in the third section of this act, with interest to the day aforesaid, and having struck the balance due to each State, shall find the aggregate of all the balances, which aggregate shall be apportioned between the States agreeably to the rule hereinafter given; and the difference between such apportionments, and the respective balances, shall be carried in a new account, to the debit or credit of the States, respectively, as the case may be.

That the rule for apportioning to the States the aggregate of the balances first abovementioned, shall be the same that is prescribed by the Constitution of the United States, for the apportionment of representation and direct taxes, and according to the first enumeration which shall be made.

That the States who shall have balances placed to their credit on the books of the Treasury of the United States, shall, within twelve months after the same shall have been so credited, be entitled to have the same funded upon the same terms with the other part of the domestic debt of

the United States; but the balances so credited to any State shall not be transferable.

That the clerks employed, or to be employed by the said commissioners, shall receive like salaries as clerks employed in the Treasury Department. That the powers of the said commissioners shall continue until the first day of July, 1792, unless the business shall be sooner accomplished. [Approved, August 5th, 1790.]

No. 8.

The Comptroller of the Treasury having transmitted to me for entry in the books of the Treasury, the final report of the board of commissioners appointed to settle the accounts of the several States with the United States; also a letter from said commissioners to the President of the United States, dated June 29, 1793; and a letter from Tobias Lear to the Secretary of the Treasury, dated August 19th, 1793; the following records are made in pursuance to the Comptroller's instructions contained in his letter of the 26th of August, 1793, which are to take effect from the 29th June, 1793, the date of said commissioners' report.

(A.)

Copy of the Commissioners' letter to the President of the United States. OFFICE OF ACCOUNTS, June 29th, 1793.

SIR: We have the honor to submit to you the enclosed report upon the claims of the several States against the United States.

The difficulties we had to encounter, owing to the magnitude, intricacy, complexity and variety of the claims, have been numerous. These, added to the loss of papers and other accidents, together with the peculiar nature of some of them, and the variety of paper which circulated during the war, has rendered it impracticable for us to follow with such minute precision, the several charges, as might be expected in the settlement of the concerns of individuals.

We conceived that a speedy adjustment, having substantial justice for its basis, would best promote the end for which we were appointed: we have therefore used our utmost endeavours to effect it, and we trust that the principles upon which we have proceeded, considered as a system, will, in as great a degree, produce the thing aimed at, as could be done by any others; at least we can with great truth declare, that, in forming them, this was our intention and only view, and that they are the best our judgments could devise. We are therefore not without hope that our decision will meet the approbation of our fellow citizens.

With all due deference,

We are, sir, your ob. servants,

WM. IRVINE,

JOHN KEAN,
WY. LANGDON.