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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. Attorney 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 niate 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.

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.

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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. this petitioner were paid, it would open an unlimited gate to perjury, fraud, and speculation.

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

JAMES E. STEWART.

DECEMBER 22, 1854.-Laid upon the table, and ordered to be printed.

Mr. FAULKNER, from the Committee on Military Affairs, made the following

REPORT.

The Committee on Military Affairs, to whom was referred the memorial of James E. Stewart, late a captain in the battalion of Maryland and District of Columbia volunteers, in the war with Mexico, have accordingly had the same under consideration, and submit the following report:

It appears, from the evidence, that the memorialist entered the service as captain of company A, in said battalion, on the 30th of May, 1846, at the city of Washington, for the period of twelve months; that upon the death of Lieutenant Colonel Watson, who was killed in the action at Monterey on the 21st of September, 1846, the memorialist, by virtue of his position as senior officer, became the officer in command of the battalion, and so continued until the 24th November, 1846, when Major R. A. Buchanan, United States army, assumed the command by regular appointment.

The memorialist claims the difference between the pay of captain and the pay and emoluments of a lieutenant colonel, from the 21st of September, 1846, the date of the death of Lieutenant Colonel Watson, and the 30th of May, 1847, when the battalion was mustered out of

service.

How the memorialist can claim pay as a lieutenant colonel for a time when Major Buchanan was regularly in discharge of the duties of the command, the committee cannot conceive.

If the memorialist is entitled to any additional allowance whatever, it would only be for the time between the death of Lieutenant Colonel Watson, on the 21st of September, 1846, and the appointment of Major Buchanan, on the 24th of November, 1846, a period of about two months. The committee are not willing, however, to admit his claim even to that extent, for the reason that they are of opinion that the mere temporary imposition of an additional honor or responsibility upon an officer can give him no claim to extra compensation. The pay is graduated according to the rank of the officer.

There was scarcely a regiment in Mexico which was not at one time under the command of a captain, and yet those officers have never set up any claim to compensation beyond their rank. To allow, then, this demand, would be opening the door to an endless batch of claims of the

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