Revolutionary War Pension and Bounty Land Warrant Application File R 9731, for Robert Smith, South Carolina
Page 240

Washington DC
28th Sept 1858

Hon. Jacob Thompson
Secy of the Dept of the Interior

Sir

I have the honor to appeal from the adverse decision of the Hon Geo C. Whiting Commr of Pension in the case of Mrs Ferguson Smith of Geo, widow of Robert Smith Act 7th July 1838.

The point in question is that of identity and veracity of witnesses as to the period of service.

I have the honor to be
Very Respectfully
Th. Lumpkin Atty for the claimant

PS Col. J.M. Varner, of Geo. will call and see you in person on this subject TL
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Indian Springs Ga
May 8 1856

Dear Sir

I forward evidence be filed with the bounty land of Ferguson Smith widow of Robert Smith, No 242. 618 under the act of March 3. 1855

Very Respectfully
JM Varner

J Minot
Com Pension
Washington City DC
Page 242

[Document is torn]

idence on in the claim [illegible] by tho [illegible] ent
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[Document in very faded, only legible words have been transcribed, appears to be a timeline of testimony]

Dec: Male
Hist: from Fairfield Dist, S.C.  Ma: in 1780.
W. Smith Age 62, in 56, he is son of Petitioner, 
father moved from Fairfield Dist to Butts Co; in27 was always reputed a volunteer
Green & Winn, & Capt Martin, Wilson
has chil: further himself father
tesitifies in 46 Gree Capt Marting & Gray
Wm. Tanner afnt. 45 testified as Coleman River did in rel to official
alleges & 1st child Born in
Smith talk of Rev: 
Hearns Fist:
Wm Smith 
known byt his bro: Daivd + 
whilst
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9731 9731
Ferguson Smith
1838 widow of Geo: Robert Smith.

Petition praying for a pension under the act of 1838 on account of the revolutionary services of her husband.

March 5. 1860 Referred to the Committee on Rev Claims Rev Pens

March 7.1860 Discharged and referred to the Committee on Revolutionary Pensions

1860 March 30 Bill 5481
Mr Hardeman
Page 245

Department of the Interior
October 12th 1858

Sir, 

I have carefully considered the claim of Ferguson Smith widow of Robert Smith, for a pension under Act July 7th 1838 upon which an appeal has been taken from your decision.

I am of the opinion that the evidence
fails to establish the amount of service necessary for the allowance of a pension. Your decision is therefore affirmed; and the papers which accompanied your report are herewith returned to Your Office.

I am, very respectfully,
Your Obedt Servt
J. Thompson
Secretary.

Hon G. C. Whiting.
Commissioner of Pensions.
Page 246

J. M Varner Washington D.C. [check mark] October 7, 1858

Respecting the claim of Mrs Ferguson Smith.

Rec'd 9 Oct. '58 Mr. Rhett
Page 247

Washington. Oct 7. 1858

Hon Jacob Thompson Secy. of the Interior

Sir.
It is perfectly clear from all the proof in the Pension claim of Ferguson Smith, that the solder served in the Revolution, and if you are not satisfied that the proof of service is sufficient to let her in for the Maximum of the act of June 7, 1832, it would be a simple act of justice to take a liberal and favorable vision of the case and believe us for the minimum (6mos) of the act.

You can do as you please in a premise.
I regard it as a revelation of every principle of common right & justice to reject this claim in toto. you of course will be aware, in your action. By no course of service never can it be rejected, unless the claim appears
fraudulent into to which I invite the closest scrutiny. If you will designate an agent to go with me I will take him to see the claimant and the witness, Wm Smith and give you full satisfaction. Address me at Indian Springs Ga

Vy Respectfully
J M Varner.
Page 248

Washington. Oct. 6th 1858

Hon Jacob Thompson. Sec. of the Interior

Sir.

It seems that the Pension claim of Ferguson Smith, on appeal before you will be made to turn upon the testimony of Wm Smith of Chambers Co. Ala. Mr Whiting puts him down, at not more than 8 years old at the date of the services he swears to and Mr Rhett would allow him to be 7. I give him no precise age myself, but I allow him to have been old
enough to remember the general facts he swears to because he says he was large enough to hoe Corn and did it, and so declares under his solemn oath. Now, Sir, let me ask you, if it is not unreasonable to suppose an old reputable citizen who has more than filled the round of years allotted to mankind by the God of nature, ready to step into the grave and having no other interest under heavens than right Justice and truth, would come forward and perjure himself in the manner that is necessarily inferred by a rejection of his affidavits It wont do to say that the man is innocently mistaken, or imposed upon. Do you suppose, or
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have you any right to presume, that the magistrates Meacham and Jarrell, would certify that William Smith was a credible man, if he was an old dotard, imbecile and without memory, or if he was an old scoundrel, unworthy of belief?

Let me ask you, if the affidavits of some one of your parent stock, were to appear in a case of this kind and be disregarded in the manner it is proposed to disregard the affidavits of old Billy Smith, would you not regard it as an outrage to yourself, your family and to the memory of your ancestry? Would it not be an act of injustice, unwarranted by the principles of law, reason and justice? And can this act of injustice be any the less to William Smith and to his family? And is the same thing too to be perpetrated upon the honorable magistrates who certify to the credibility of William Smith? And is the insinuation too of a concoction and fraudulent claim to be thrown at me, the Hon David J Baily, who recommends me as a gentleman and the number of witnesses and magistrates who come up to prove
the good and revolutionary reputation of old Robert Smith? and all this done too, on a supposition, outside of the record, that William Smith may be mistaken, and that this claim may not be all right. These are the objections to this claim, which are absurd in the extreme, and I
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cannot believe for a moment, that you will refuse to allow this claim.

You know, Sir, that it is a principle of Common Law that in a contest with the Government and the subject in civil suits or other claims directly before the Executive Department, the subject is entitled to the benefit of all doubts that may arise in the investigation of the claim, either upon the evidence of the construction of Statutes. And by this settled rule of Law, if the objection to this claim were well founded, the preponderance of truth would still be greater than falsehood in the claim, and the claimant is entitled to have her case determined upon the favorable side. Since the case is much stronger when the objections as to the claim, are based upon the mere presumption that the witness was too young to recollect what he states, put in juxtaposition to his declaration made under his solemn oath. The objection to this claim can not bear the test of reason, and much less concur they bear public scrutiny, but I suppose it can be rejected and the papers shelved among the musty records
of the Department where they will never reach the light of day.

I represent as the attorney, Sir, an old woman, the widow of a revolutionary Soldier, who as a gallant youth 16 or 17 years old, when his accepted country was oppressed periled his life and fortune in her defence,
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and assisted to achieve her Independence, and now when she calls for the bounty granted to her by the Government, she, her numerous descendants, the brother, the memory of the soldier, the living and the dead, are to be insulted and outraged with the response that the witness, the brother of the soldier, whether innocently or intentionally has sworn falsely, and the charge to made upon a supposition having no good solid reason to sustain it.

I do not suppose that the sub officers who have had this claim under consideration would make an intentional wrong decision in the premises, but I do say, without the fear of successful refutation, that the objections urged against the claim, contravene the settled principles of the Common Law, are illogical,
contrary to common sense, and cannot bear the test of reason and argument.

There is one claim at least, (and I have no doubt many) that of the widow of Edward Martin, the alleged Captain of the soldier here, which is proved by parol proof much weaker than the combined proof in this case on file in the Pension Office.

I leave the case with you sir, by adding that if you err in your decision in relation to it, Every principle of government says that that error should be on the side of subject.

Very Respectfully
J M Varner
Page 252

Sept 29th 1858

Hon Geo C Whiting

Sir

I desire to say that it is of great importance to
Ferguson Smith, and her children who are generally poor, that her Pension claim should be determined favorably and I would ask you to make out a report in the case to day if you can.

I wish to have it examined thoroughly, and would say that I am not a general attorney for Pension claims, and attend to them more as
a matter of honor than pecuniary interest to myself.

Very Respectfully
J M Varner
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J. M Varner Washington City Sep 30.1858
[check mark]
Respecting the case of Ferguson Smith.
Rec'd 30 Sep:' 58 Mr. Rhett
Page 254

Browns Hotel Washington
Sept. 30 th 1858

Hon Jacob Thompson Secy of the Interior

Sir

Mr Whiting told yesterday evening, that he would to day make a report to you on the appeal from his decision suspending the Pension Claim of Ferguson Smith, and that he would issue a Land warrant on the claim.

I wish to say that I am not a general
attorney for pension claims, and that I am conducting this one as a matter of favor more than of pecuniary profit to myself; and that the claimant and her descendants, known to me, and who reside in Butts Co. Ga. are generally poor and it is therefore of no little moment to them that this claim should be determined favorably.

I insist that the proof, both parol and recond, directly establish the alleged services for a term greater than six months, and that the proof cannot be disregarded from any thing that appears
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in or out of the papers concerning them; nor can the proof be rejected upon any legal rule of Evidence known to a constitutional government, nor even under the rigid regulations for carrying into force the act of Congress under which this claim is filed.

And I would remark further that even if this claim were not established full up to the regulations, that the papers all show the claim to be honest, fair and just in its length and breadth, height and depth, and thus beyo
nd all reasonable doubt, that the sworn declaration of the Claimant is substantially true, and when she comes before you as her counselor in the cause, that you will doubtless extend some liberality in the premises.

The arguments adduced against the claim at the Pension office, such as I have been able to get on paper, and such as were stated verbally to me, I will communicate to you, and would simply remark that the claimant was allowed the benefit of nothing in the papers in the considerations of this claim, and that the objection if intended to be serious, are of too
little moment to require refu-
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tation.

I desire to see you in person on this claim and will call at your office as soon as the papers are
for'd by Mr Whiting

Very Respectfully
J M Varner
Claimant Atty

[Line cut off at bottom of the document, illegible]
Page 257

J. M. Varner Washington DC Oct. 1. 1858
[check mark]
Respecting the case of Ferguson Smith
Rec'd 1 Oct .'58 Mr Rhett.
Page 258

Washington
Oct 1. 1858.

Hon Jacob Thompson

Sir

In the report of the Commissioner  of Pensions of the 30th ult, to you on the appeal in the Pension Claim of Ferguson Smith you will observe that the Commissioner admits that the alleged services are proved for 100 days by the certificate from the Comptroller of South Carolina (marked 1) and then
the Commissioner, in a subsequent part of his letter, says that the presumption is that if claimants husband served longer than the 100 days, there would be some record evidence of it in the Archives of South Carolina. If the muster rolls, of the militia of South Carolina were preserved, and Especially if the muster roll of the alleged Captain (Martin) was preserved, and it appeared on that muster roll, that Claimants
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Husband served only 100 days, then the presumption alluded to by the congressmen would be legitimate. But here the case is different. There is no muster roll and the Certificate alluded to, shows a warrant drawn in favor of Smith for 100 days and transferred by another party, and it is clear that is remarkably fortunate, for the claimant that this much record proof was preserved, which was accidental, and it equally clear that the certificate, could not have been intended to cover the full extent of the alleged service, as the quarterly payment of a soldier, is not even presumptive proof that he served no longer than 3 months.

The certificate from the Surveyor General of Georgia, shows two Lots of land granted to the husband of Claimant and the Pam. acts of Ga, Marked D. Show that the soldier served a Tour of Tours of duty before he could obtain the benefit of the act.
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These facts supported by the testimony of Wm Smith, then the truth of the declaration. This witness in his affidavit of Sept. 1858, States
that he was a boy large enough to work and did hoe corn and do other light work and assist in making and a crop of corn during the
period of service he swears to. once further swears that he is over 85 years old, and his wife Elizabeth Swears that she is 85, and that her husband is older than he is. The Commissioner admits the facts if he could believe the witness old enough to recollect the term- He does not state the term of service to a day but gives the reason why he says a year
I think it clear that Smith knows what he swear to, and unless it is conclusive from the papers that he has sworn falsely, I do not understand
how it can simply be presumed that he has perjured himself-

If the full two years Term of
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service is not proved we think that one year is established and hope that you will grant the Pension

Vy Respectfully
J M Varner
Claimants atty
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J. M. Varner October 1.1858
act 1855
[check mark] States Bounty Land is allowed
additional Respecting the case of Ferguson Smith.
Rec'd 1 Oct. '58 Mr. Rhett
Page 263

Oct 1. 1858. 2 1/2 P. M.

Hon Jacob Thompson

Sir. 

I have just received a Land Warrant on the claim of Ferguson Smith.

The identity was the question, and the affidavit of William Smith, is admitted to prove the identity.

I would ask how can his testimony be sealed, and admitted to prove the identity, and he branded with falsehood as to the length of time he swears to?

He states one years service in support of the Pension claim, and says he assisted in making and gathering a crop of corn during the time. Every one knows what is an annual crop of corn from year to year, and his testimony will certainly if good for one thing be good for the balance.

Yrs respectfully
J M Varner
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J, M. Varner Washington City Oct. 2. 1858
[check mark]
Respecting the claim of Ferguson Smith for Pension.
Rec'd 4 Oct. '58. Mr. Rhett
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Browns Hotel. Washington City
Oct. 2nd 1858.

Hon. Jacob Thompson Secretary of the Interior.

Sir.

You will do me the kindness to read my remarks carefully and I ask this because I do not think that in the mass of business at your Office you would fully understand all the bearings in the Pension claim of Ferguson Smith.

In our brief conference to day in the subject, you remarked that the affidavit of William Smith, swearing to one years service, seemed consistent with the record proof of 100 days service from South Carolina. It is true that the affidavit and the "Certificate" are consistent, as far as they go together; but it is not a
rational deduction, that the soldier service the 100 days only. You will bear in mind, that the Certificate of the 100 days service, is not taken from a muster roll, but it is a quarterly payment, the warrant for which, was
transferred by the soldier to another person, and was accidentally preserved on record. The "Certificate, is therefore record proof, of 100 days service, but it is no more presumptive proof, that the 100 days, was all the service the soldier performed, than would be a certificate of a a quarterly payment to a soldier who served in the
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2.
Regular army for 5 years, that the one quarter was all  he served. The" certificate, therefore can be regarded as only fragmentary proof of a portion of the alleged services If the Muster rolls, of the Regiment commanded by Col. Jefferson Davis in the Mexican War, were lost, and one of the Mississippi Volunteers, should come up and allege that he served throughout Col Davis' Command, and could present record proof of payment for one quarter only
would not even slight parol proof be taken to enlarge the service shown by the certificate of payment? one witness would be sufficient, and his testimony would be received liberally; and even if no witness could be found strong 'corroborating circumstances, would be received liberally to support the sworn declaration of the soldier.

There can be no question as to the correctness of these positions If the 'certificate of the 100 days service had been taken from the muster roll, of Winn & Gray, (and you will bear in mind that it is not) then according to the rules, stronger proof would be required, to enlarge the Muster roll, than to enlarge the services shown by the Certificate, under consideration.
A Muster roll, cannot under any correct rule of evidence be conclusive upon a soldier as to its recitals, because the private soldier has no control over it, and no hand in making it, and I dare say that the testimony of one witness would be sufficient, to prove a greater length of service than shown even by a muster roll,
in the case of Ferguson Smith, Wm Smith
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3
The brother of the soldier comes forward, and swears that his brother served a year, as a volunteer soldier in the Revolution, under Gen. Winn, Capt Ned Martin & Lieut Gray, and that he would not swear to the service to a day and says a year, because he and his brother Davies, an Elder brother, and a negro man made, and gathered a crop of corn during the service he swears to, and that he hoed corn and did other light work on the farm. Now if William was large enough to work, he was old enough to recollect, he says both, and so declares, under his solemn oath, and let me ask, what right have you to say he dont recollect what he swears to, and simply presume that he is mistaken? There is nothing in the record that even has a tendency to disprove him, and if there were, unless it should conclusively appear that he is mistaken, you will certainly give the applicant, the full benefit of his testimony, and not reject it, because there might be probability that he has erred.

The witness says that they made and gathered a crop of corn during the service sworn to. Now in Georgia, where I live, farmers plant on about the middle of March and pull fodder about the middle of August, a full five months-- 150 days from planting to pulling fodder, and then gather generally after frost, and rarely do they get through before Christmas. The earlier part of the year is occupied in preparing for the crop The climate in South Carolina is the same
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4
and does not mature a crop any sooner than the Climate in Georgia, where it is impossible to plant a crop of Corn and mature it even to the pulling of fodder short of five months, and mature the corn short of 7 or 8 months, allowing no time for preparation, and gathering as soon as matured you will see and must admit, that it is impossible by nature to plant rear and gather a crop of good ripe corn short of from 6 to 8 months in So. Carolina
and the crop William Smith swears to, could not have been made and gathered short of double 100 days. Even if they did nothing before planting gathered as soon as the corn could mature. But it is reasonable to suppose that the first months of the year were occupied in preparation and that the crop was gathered in the fall and winter months. The last years crop of Corn or Cotton- or the annual crop- according to common understanding, is from Christmas to Christmas from year to year, and when William Smith says that he and his brother and a negro man made and gathered a crop of corn during the services he swears to, it cannot for a moment be supposed that the time was less than 6 months, nor even short of the neighborhood of 12 months. He says a year not to a day-- and of course the service occupied about 12 months and there is nothing in reason and nothing in the papers to suppose a shorter time.
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5
The question is is William Smith to be be believed? He is an old man, with a wife, children and grand children, and some property, a competency, as the census will show, lives in the N. West corner of Chambers Co. Ala. highly respected in his community, and certified by two magistrates to be a credible person and his brother Robert Moved from Fairfield Dist. S. Carolina to Butts Co. Ga. Shortly after that portion of Ga was purchased
of Gen McIntosh, a chief of a branch of the Creek Indians. There mother was then in life and with them, and being an Irish family, the Militia District where this claimant now lives was changed, from Hearnes to Dublin District, and Post office called Cork, which names they bear to this day.

This Claimant is very old, and cannot possibly live much longer. Her sons, sonsinlaw, and grand children are generally poor - an honest, respectable, hard working people, and the purest democracy that the sun of Middle Georgia ever shone upon, and to be denied this Pension, her and their right, and in that denial the stigma of falsehood and perjury, fixed, as far as the action of the Pension office can fire it upon the witness- the bone of their own bone and flesh of their flesh, would be an injustice to these people, which I cannot for a moment presume you will suffer. The last vestige of Evidence known to exist is on the bill, and nothing more can be done by the Claimant.
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6
This claim is fair honest and just, in the length, in breadth, height and depth, and every scrutiny into its correctness is invited.

As for myself, I would simply remark that I have a letter of recommendation on file with
the papers from the Hon David J. Baily, who is my neighbor, and an Ex Member of Congress, from the 3rd Congressional District of Georgia, and that I am not a general pension agent or attorney and that this is the only case of the kind I ever conducted, and that I am attending to this one more as a matter of favor than of pecuniary profit to my self. And I would further say that I have no Mortgage sale or transfer of this claim, and expect none, nor does any body else so far as I know,

My time is exhausted for staying here and I will ask you to order this Pension in time for me to leave here on monday night

Very Respectfully
J M Varner
Clmts atty

P.S. If this Pension cannot be granted for two years, you will certainly grant it for 12 months for we claim that we have directly proven that length of service- J M V
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Washington Oct 5, 1858

Hon Geo C Whiting Commissioner of Pension.

Sir

In the Pension claim of Ferguson Smith it is alleged that Robert Smith, the soldier then a resident of Fairfield District served under Gen Richard Winn, Captains Edward & William
Martin & Lieut. Gray.

one of the witness states, that the soldier in his time said he was also under Gen Green [Greene] and fought at the Battle of Eutaw Springs.

An Examination of the Rolls in the Department, and especially those of Gen Greene and those who fought at the Battle of Eutaw Springs may discover the service of Robert Smith.

I therefore ask the examination hence and would ask to direct the Clerk in Examining for the service of Robert Smith only

Vy Respectfully
J M Varner
[illegible]
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(E)
Page 273

State of Georgia}
County of Butts}
On this the third day of September of
Eighteen hundred & fifty Eight personally appeared Ferguson Smith, a resident of said County, and the widow of Robert Smith of said County deceased, who being sworn according to law, declares that she is the identical person who is making application for a Pension & bounty land on account of the services rendered by her said husband in the Revolutionary War and the said affiant presents a Bible which she declares is her family record, and she declares that the Entries made on the page in which the name & age of herself and her husband appear were made at her house near Winnsboro in South Carolina, and at her house, by one Alick McWillen, a schoolmaster who boarded at her house, and that said entries were made at the request
of her and her husband and in their presence, about the year Eighteen hundred and Eight, and contains a correct and true record of the ages of the children of her and her said husband, then in life, and all of whom were born in Lawful wedlock.

She further declares that the age of her husband as entered in said Bible was not considered by her
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and her husband as certainly correct. and her own age as entered she considered correct.

she further declares that her said husband when a young man had black hair and pale blue eyes, and was a medium size man.

She further declares that she is about six years older than her sister Elizabeth, the wife of William Smith who lives in Chambers County, Alabama.

Ferguson her X mark Smith 

State of Georgia}
County of Butts}
I, Henry Hendrick Ordinary, in & for said County & State do hereby certify that Hubbard Williams whose name appears to the foregoing certificate is & was an acting Justice of the Peace in & for said County at time of signing the same, and that B H Ward whose name also appears is & was an acting Justice of the Peace at the time of signing the same, and that Edward Varner, whose name also appears is was an acting Justice of the Inferior Court, at the time of signing the same, all of said County
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and I further that Ferguson Smith swore to and subscribed the annexed declaration in my presence the day and year before stated, and that I know her to be the identical person
she represents herself to be, and the widow of Robert Smith, and that she is a credible person and I further certify that it appears from the records in my office that B .J Bennett of said County was granted Letters of Executorship on the Estate of the said Robert on the 4th day of July A.D. 1853

and that mine is a Court of Record and that I am Ex officio Clerk of said County And I certify that the Bible annexed is the one in relation to which the affidavit of Ferguson Smith was taken

Given under my hand and seal of office this 3d day of September 1858
Henry Hendrick
Ordinary

[Image of seal, illegible]
Page 276

Hon Jacob Thompson Sec. of the Interior Jany. 15. 1858.
for the appeal of Ferguson Smith wid. of Robt Smith decd for Pension & Bounty Land
No 242.818.

See Report of Pension Office dated Feb. 1857
 + sent [illegible] replying 27 or 28 of Apl fully affirming [illegible] 2p upon finding the [illegible] [illegible] 1857 + examining it in [the last 6 lines are very faint, illegible]
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Indian Springs. Butts Co. Ga
Jany. 15th 1858

Hon Jacob Thompson. Sec. of the Interior

Sir.

You are requested to examine with close attention this communication in relation to the Suspended pension & bounty land claims of Ferguson Wid of Robert Smith, which were on appeal before you, from a decision of the Commissioner of Pensions, which decision you fully affirmed. From some radical error, in the examination of the papers, I maintain that the decision was erroneous, and if I can point you to the Error, you will doubtless award the claim, which would be small, although important to the claimant who is in indigent circumstances. I have mislaid your communication, and cannot refer to its date it was made however shortly after you become the Sec. of the Interior.

The claim papers were for'd to the Pension Office in the Spring of 1856. and I received a communication, under date of May 8. 1856, from J. Minot, Commissioner stating that the papers had been received, and that it was not necessary to examine them because the claim had once before been made, from Oglethorpe Co. Ga. by Robt Smith, for service in Virginia of a character not recognised by the Pension Laws. Here the error began, because this claim is for service performed in South Carolina during the Revolution, and the claimant, nor her husband the soldier, never lived in Virginia. Nor in Oglethorpe Co. Ga. but on the contrary they lived in Fairfield District, South Carolina and in Butts, Co. Ga. where the claimant now resides, and where she and her husband lived for thirty years. I called the attention of the Commissioner, to the fact that he had examined the wrong papers, and I was never informed
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that this mistake was ever corrected, and I am persuaded that the Commissioner decided the case under this mistake of the facts, and that you examined the case, under the same Error, otherwise you would not have suspended the claims. There was necessarily one of two things, that there was an entire misapprehension of the true facts of this case and some mistake as to the correct papers; or else the former rules practiced for twenty years, Established by the Sec. of War for the purpose of carrying into effect the Pension act of June 7, 1832 were discorded, and new and unusually stringent rules of proof were adopted in their stead, and the Bounty Land act of March 3, 1855, was construed in a manner different from the former practice under it.

I cannot believe that the stringent rule of proof with which this claimant was required to comply would have been adopted only for a mistake in the papers and the facts of the case, and before entering into detail of the rule of proof required here, and the former rules [illegible] on such cases, I will recapitulate all the papers for'd to the Pension Office in this case. 1. Declarations of Ferguson, Wid of Robert Smith, a resident of Butts Co. Ga. for Pension under act of June 7, 1832, and for bounty land under act of March 3. 1855, and May 16. 1856, for services of her husband as a Vol. Sol. in South Carolina, during the
Revolution, under the command of Genn Winn, Capt Ned Martin, Lieut Gray and other officers-
2. The "Certificate" from the Records of the Comptrollers office of South Carolina, showing 100 days service of Robt Smith, under Winn & Gray- 3. the affidavits of William Smith, of Alabama, of R. P. Coleman, B. F Ward, William Tanner, R. W. Smith, residents of Butts Co. Ga. and of Susannah McLendon resident of
Monroe Co. Ga. and also an attached paper showing that claimants husband, drew Land in Georgia as a Revolutionary Soldier. The affidavit of Wm Smith
Page 279

of Alabama was sent last, and I did not receive notice of its reception. The before stated papers were all for'd by me to the Pension office, and the truth of this case cannot be determined without having them all together. You will observe that this is not a Virginia claim but a South Carolina claim, and keeping this fact in view, I will call your attention to the distinction between the rules of proof for a Virginia claim, and a South Carolina claim, adopted by the Sec. of War, on June 27. 1832 for the purpose of carrying into effect the
act of June 7, 1832, under which this claim is filed. The rule of proof for a Virginia claim is substantially as follow= That there are preserved, in the War Dept muster rolls of the Continental Line, Virginia, and New Hampshire troops, and when a claimant of these classes makes application for a pension, and his alleged services do not appear on the "muster roll, that fact raises a presumption against him, and then the Claimant must produce the direct proof of contemporary survivors, with such relaxations of the rule, as the Department may from time to time allow. Such is the rule of proof for a Virginia claim, but this is a South Carolina claim, and we come now to the rule of proof adopted for that class to which it belongs, as follows= "That of the other State Troops, Vols, & militia, there are no muster rolls, preserved, and no such record proof to advert to and consequently no such presumption can be raised against the applicant as in the former case, and the Sworn declaration of the party supported by corroborating circumstances, is admissible and sufficient, because from the rapid decrease of the Survivors of the Revolution, the direct proof of contemporary survivors is difficult to be obtained, and there being no muster rolls, any other rule would deprive many of this class of soldiers of the benefit of the act"
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I have stated correctly the substance of the published rules of proof of the Sec. of War, of June 7, 1832. This claim was determined by the Commissioner under the rule of proof for a Virginia claim instead of the rule for a South Carolina claim, and why that was done, I was not informed, and am persuaded that it was so adjudicated, under the mistake at the beginning that this was a Virginia claim, which error probably was never corrected.

If some liberality should have been extended to that class of soldiers to which this claim belongs, in Establishing their claims, on account of the great difficulty in obtaining direct proof, in 1832, a fortiori a still further liberality should be extended in 1858, and especially to the widow of the Soldier who it is presumed could not detail the service with the accuracy that the Soldier might were he in life. The claimant here declares that her husband, Robt Smith was a Volunteer in South Carolina, during the Revolution, for Two years, at periods or on tours of three months at a time under Gen. Winn, Capt Martin & Lieut. Gray, and other officers whose names she cannot recollect. She then produced a Certificate from the archives of South Carolina, showing the service of Robt Smith, for 100 days under Winn & Gray. This "Certificate, I take to be prima facie direct record proof unless rebutted. Has any other claimed for the same service? Were this Claimant compelled to prove that her husband, Robt Smith, was the Robt Smith, who performed the services shown by that certificate, then she would have no use for the record proof. And if there were any doubt as to the identity, the facts and the evidence of the witnesses establish the identity. you will observe that Claimant alleges that her husband served in tours of three months. The Certificate shows a service of three months and
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ten days. William Smith, aged 82 years of Alabama states positively that his brother Robert, who was claimants husband, served as a volunteer under Winn, Martin & Gray, the other five witnesses afford proof of the identity by stating that Robt Smith, declared from thirty years ago that he performed these services

I maintain that Claimant has established Three months and ten days, direct record proof of the alleged service. You will recollect that the rule of proof for services performed by a Volunteer in South Carolina does not require direct proof, but admits the Sworn declaration of the Claimant when supported by corroborating circumstances. Take the declaration in which she says that she was a girl and quite young at the time of the Revolution. that she then lived near Winnsboro, in South Carolina- that Robert Smith the soldier, who become her husband, lived a neighbor to her and that of her own knowledge he performed the alleged services- that she recollects well that he would be gone several months at a time as a volunteer under
Gen Winn, Capt Martin & Lieut Gray, although she cannot recollect the particular dates of the service- take then the affidavit of Robt P. Coleman, who declares that he knew Claimants husband in South Carolina - that he
was reputed there to have performed the alleged services, and that he lived a neighbor to him in Butts Co. Ga. and that he was always reputed here for thirty years to have performed these services, and that he always claimed to have performed them-- that he often told of the battle of Ninety Six, and claimed to have been a South Carolina volunteer in that battle, take then the affidavits of William Tanner, B. F. Ward, Susannah McLendon who all certify that they lived neighbors to Robt Smith, for thirty years past up to his death, and that he always declared to have performed the alleged services
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take then the proof that Claimants husband drew a Lot of Land in one of the Ga. Land Lotteries, as a Rev. Soldier, and the proof all connected carries a presumption amounting to positive proof, that the declaration is true, and should entitle this Claimant to the benefit of the Act of June 7, 1832, attest for the shortest term of six months, if not for the full term of two years as provided for in that act. The evidence comes fully up to the rule, and to abrogate it now and Establish for this case the regulation of direct proof adopted only for Continental Virginia and New Hampshire Troops, would utterly deprive claimant of the benefits of the act. No further direct proof
can be obtained, and it is useless to for'd other Traditionary evidence as there is already a sufficiency of that character to corroborate the sworn declaration of the applicant and show that her claim is one of truth and merit.

An appeal is made in the behalf of this Claimant that you together with the Commissioner, take all the before cited papers and reexamine the case. If the papers are not all on file, inform me. It will be less to call for a report of the papers from the Clerks, because the case would then be liable to the same error as in the beginning, and having the papers themselves before you the error will be corrected. I have written to the Commissioner to reexamine this case and you are requested to do the same, because I am satisfied that there was an error in the previous examination arising from the fact that claim papers of Robt Smith of Oglethorpe Co. Ga. were mistaken for the claim of the husband of this applicant, or from some other cause as yet undiscovered. A convenient reference for the rules of proof
adopted on June 27, 1832, can be found on pages
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40,1,2& 3 of a printed collection of the Pension Laws and Regulations, made pursuant to a Resolution of the Senate of February 9th 1849.

There is a separate declaration, supported by the Certificate from the Archives of South Carolina, filed for the bounty land claim, and it is a strange rule to make this claim dependant on the determination of the Pension claims as was done. It is admitted that for this claim none other than direct proof will be received and you will not fail to observe that the acts of March 3, 1855 & May 16, 1856, require record
proof, in the first instance, and if no record proof can be obtained, then the Evidence of contemporary survivors is admissible. The certificate, is prima facies record proof, and this claimant should not be required to to prove the identity only by her own oath, unless there was before the Commissioner some fact, as the claim of another person for the same service, going to show that Claimants husband was not the soldier who performed the Service as shown by the Certificate. If there is any such evidence before the Department, I have not been informed of the fact, and even if there was such rebutting testimony, the corroborating proof filed in this case, leads to the conclusion with every
reasonable presumption that this Claimants husband was the Robt Smith shown by that Certificate

If all the before recapitulated papers are not in file, on being informed of the deficiency, I will have them taken again and for'd.

The Hon Robt P Trippe, is the Representative from this Congressional District of Georgia, and you are referred to him for further information in relation to the Claimant & Witnesses in this case.

Very Respectfully
Jefferson M Varner
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Indian Springs, Butts Co. Geo
Feb 18th 1858

Sir.

The action of the department on the pension and bounty land claim of Ferguson, Wid of Robert Smith, deceased, is based on Error, which probably arose from the fact that at the first examination you gave the case, the old papers of some other Robert Smith, of Oglethorpe Co. Ga. claiming for service in
Virginia, were referred to, instead of the proper ones, as you will see from your letter to me on May 8, 1856. It is cause of complaint that the error is not speedily corrected. It is true that this Claimant alleged in her declaration, that her husband made out papers in his life time for pension, by Rufus McCord, in this City, and that she did not know what had become of the papers. Rufus McCord, who now lives at Jackson Butts Co. States to me that he did go to Robt Smiths, some years ago for that purpose, but that the papers were not made out. The Robert Smith whose papers were examined, was a different person from the husband of this Claimant. That Claimant alleged for service in Virginia, and the Department properly required the direct proof of contemporaries, inasmuch as there are muster rolls of the Virginia Troops preserved. By a convenient reference to a printed pamphlet pages 41.2.3.4 of the Pension
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Laws, the rule of proof adopted to carry into effect the act June 7, 1832, is that because there are muster rolls, preserved, of the Continental Virginia & New Hampshire Troops, if the alleged service does not appear on the muster roll, that raises a presumption against the Claimant, which will be supplied by direct proof only. This was a proper regulation.

But the Department seeing that this rule would deprive the soldier of those States of which no rolls are preserved, of the benefits of the Act, adopted a different rule for those classes. The necessity of the case required a different regulation, hence it was determined with a claim, as for service in South Carolina, the proof of one witnesses would answer, and if none could be obtained, then the Sworn declaration of the Claimant, if supported by corroborating facts was taken. The corroborating facts referred to traditionary proof. The rapid decrease of the survivors of the Revolution, made the necessity for this rule, and if the rule was important twenty five years ago, it is still more important now, and the injustice of withdrawing the rule from a claim at this date, would be so apparent, that I am satisfied that this claim was examined under the mistake before referred to, or some other error yet undiscovered. The Department put this claim under the regulation for service in Virginia, and required direct proof for the whole term of service, because there are rolls, of the Virginia Troops preserved. This would have been right, had the claim been for Virginia Service. But on the contrary this claim is for service in South Carolina and there are no rolls, preserved, of the Troops of that State
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It is hoped that the Department, will review the right papers in this case and putting it on the right rule, look at the case with the liberality demanded by the circumstances. It could not be expected that the Claimant could detail the service with accuracy of dates &c. at least with the accuracy that her husband might were he in life.

Claimant alleges that her husband served as a volunteer soldier in South Carolina under Gen Winn, Capt Martin & Lieut Gray, for two years, in terms of three months during the Revolution. The witnesses. B. F. Ward, Wm Tanner, R. P. Coleman, R. W. Smith & Susanah
McLendon, declare that Claimants husband, claimed from the time he came to Georgia about 1827, up to his death in 1853, I believe, that he served under those officers, and also that they believed him to have been
a revolutionary soldier, and that he was so reputed here where he lived. William Smith of Alabama, States directly, that Robert Served under these officers, but I believe he did not give the means of his information.

This affidavit is direct proof as far as it goes. Take all the affidavits together, and they make strong traditionary proof to corroborate
the truth of Claimants Sworn declaration.

The Certificate from the Comptroller of South Carolina, shows three months & ten days service of Robt Smith, under Winn & Gary. The rule has always been to admit the affidavit of the claimant to identify the party with the record in claims of this character. There being no apparent fraud in this claim, and should not be simply presumed, and it is unjust to require this Claimant to depart from the rule to prove by living witnesses that her husband was the Robert Smith who performed the service shown by the record.
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It is believed that this requirement would not have made, if there had been no misconception of the claim at the beginning. should there be any doubt as to the identity of Claimants husband with the record, the affidavits of the witnesses, particularly that of William Smith, are sufficient to dispel that doubt, and show beyond all reasonable doubt that her husband was the identical person who performed these services.

Take this direct record proof, the direct proof of Wm Smith, and the traditionary evidence furnished by the remaining five witnesses, and these afford corroborating facts, to prove the sworn declaration of claimant. The act of June 7, 1832, provides for services for from Two years to six months service. It is contended
that under the regulations for a claim of this character no direct proof is absolutely required. The record proof of three months being direct, when coupled with the strong
traditionary proof filed in the case, will certainly entitle this claimant to be paid according to the least, if not for the greater, Term, when that liberality is extended to the claim which the circumstances authorise. At this date it is impossible to prove the services by contemporary survivors, and the stringent rule of direct proof would utterly deprive this Claimant of the benefits of the act. If she were paid all that her husband would be entitled to if living according to the fullest provision of the act, from its passage up to the present time, the amount would not exceed twenty five hundred dollars and so in less in proportion according the extent of the services-