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2d Session 3

No. 2.

GUSTAVUS B. FORNER-LEGAL REPRESENTATIVES OF.

[To accompany bill H. R. No. 469.]

DECEMBER 20, 1854.-On motion of Mr. William Smith, ordered to be printed.

Mr. John M. ELLIOTT, from the Committee on Revolutionary Claims,

made the following

REPORT.

The Committee on Revolutionary Claims, to whom was referred the petition

of the legal representatives of Gustavus B. Horner, deceased, report :

of It is clearly provide middle district, b was in actual service

That the petitioners are the legal representatives of Dr. Gustavus B. Horner, and represent that the said Gustavus B. Horner was a surgeon's mate in the revolutionary army, and that he served till the end of the war, and they claim commutation of five years' full pay in lieu of half-pay for life, as justly due to them for his service as surgeon's mate ; and they rest their claim on the promise made by Congress on the 21st of October, 1780, the 17th of January, 1781, and by the act of March, 1783.

It is clearly proved that Dr. Horner was a surgeon's mate of the general hospital of the middle district by commission from the Continental Congress, dated in 1778; that he was in actual service for about four years, and until the autumn of 1782, and after the French forces had returned to the north from the surrender of the enemy at York in Virginia. It is probable that he was not again engaged in active service during the few remaining months of the war which elapsed after that period; but it appears from the evidence filed with the petition, that he did not, after the aforementioned actual service, resign his commission, but only retired as a supernumerary, ready for service whenever he should be required; for, in addition to the other parol evidence, it appears that he held his commission till the end of the war; and the commission itself, left by him among his papers, is now produced by the petitioners. And as evidence of the view in which the legislature of Maryland, of which State he was a citizen, and in whose line he served, regarded his services, they also file a copy of a resolution of the General Assembly of that State, allowing to his widow a pension for her life equal to the half-pay of a surgeon's mate, in consideration of the revolutionary services of her husband in the line of that State.

The committee are of the opinion that no presumption could reasonably be entertained, under the circumstances, that the officer, when the heat and burden of the day were over, when the conflagration of the battle was past, and no signs of it were visible, save here and

there an occasional sparkle from its embers, would then resign or desert, and forfeit the wages he had earned through so many years of toil, and which he might fondly and reasonably hope he was at last about to receive from the gratitude and the justice of his country. Such would not be a reasonable presumption under the circumstances, and if it is hazar led and affirmed, it is an affirmative that should be proved and established by incontestable evidence of the fact. History acquaints us, that at the period to which the evidence proves the active service of the officer in question, the war, in effect, ended, though not in point of law by proclamation; and it would be an ungracious and a grudging spirit to harbor the presumption that the officer had resigned or deserted, could it be entertained, which it cannot by any rules of just reasoning, without positive proof of the fact.

In Marston's case, 9th Leigh's reports, Judge Brockenbrough delivers the opinion of the court and says: “If the government allege a resignation, it is bound to prove it. Allorney General Cushing maintains that all supernumeraries were in service till the end of the war.” This opinion was published in the Union (newspaper) of the 17th or 27th January, 1854. We think, then, that we may safely affirm that the legal representatives of Dr. Horner are, from the proofs they have exhibited in their case, entitled to commutation of five years' full pay in lieu of half pay for life, if surgeons' mates are entitled to such compensation under the resolutions of Congress.

This identical question was presented to a committee of the House of Representatives at the second session of the 25th Congress, in the case of Samuel Y. Keen, a surgeon's mate, soliciting commutation pay, and a report will be found thereon in committee reports of that session, vol. 4, No. 887. That report brings in review for fair and rational construction all the several resolutions of Congress bearing upon the question, and examines the whole subject with a research, force, and conclusiveness of reasoning which is altogether satisfactory and perfectly decisive; and after reading that able report the mind is entirely satisfied beyond all and every question that surgeons' mates are as much entitled to the commutation (clained in that as in this case alike,) as any other class or denomination of physicians or surgeons in the army of the Revolution. A like favorable report, and founded upon the reasoning delivered in that case, was made at the same session of the 25th Congress in the cases of three other surgeons' mates, to wit: Drs. Yates, Savage, and Prior, as may be seen in the 4th vol. of committee reports of the House of Representatives, 2d session 25th Congress, Nos. "854, 855, 856. This committee adopt the reasoning and the conclusions upon it reported in the case of Samuel Y. Keene, a surgeon's mate, and refer to it as part of this report. Upon this state of the facts, and upon the reasoning on the construction of the law given in the case of Samuel Y. Keene, a surgeon's mate, above referred, which reasoning this committee adopt as part of this report, they recommend five years' full pay of a surgeon's mate to the heirs and devisees of Gustavus B. Horner, in consideration of his services as a surgeon's mate, and for that purpose a bill is herewith reported.

2d Session. S

No. 3.

COLONEL JOHN SHAW.

DECEMBER 22, 1854.–Laid on the table, and ordered to be printed.

Mr. ORR, from the Committee on Indian Affairs, made the following

REPORT.

The Committee on Indian Affairs, to whom was referred the petition of Colonel

John Shaw, for compensation for provisions furnished to and property taken by the Menomonee Indians in 1846, 1847, and 1848, report:

That they have carefully considered this claim, and, whilst the misfortunes of the petitioner have inclined the committee to take the most favorable view of his case, they are constrained to report adversely. The petitioner wholly neglected to comply with the provisions of the intercourse act when the alleged depredations were committed by the Menomonees, by making complaint to their agent, and enabling the government thereby to withhold a sufficient sum out of their annuities to indemnify for the trespass. The petitioner has likewise wholly failed to assign any satisfactory reason for this neglect.

The other branch of the case cannot be recognised. If every private citizen were allowed to furnish provisions to suffering Indians without the knowledge or consent of any agent of the government, and to be constituted the judge of the necessity and the extent of the relief, it would lead to the most frightful frauds, and almost bankrupt any government. Most of the border tribes have agents to look after their wants, and annuities to afford to some extent the means of support. If this petitioner were paid, it would open an unlimited gate to perjury, fraud, and speculation.

The committee, therefore, recommend that the prayer of the petitioner be rejected.

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