Revolutionary War Pension and Bounty Land Warrant Application File R. 15233, Isaac Holmes, Va.
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3
that the following considerations formed the grounds of his action.
Isaac Holmes having been taken prisoner and not having been unchanged until after the 22 April 1783, was regarded as having served to the end of the war and was therefor placed upon the same footing with those who actually served up to that period. For this reason he was allowed his commutation and interest as a Lieutenant in the line, as he continues to hold his commission as such until the close of the war. But the case was different in regard to his staff rank. Staff officers being selected out of the line and their duties as such being merely incident in their character, it may have been considered that when the service ceased, no matter from what cause, the rank and appointment also ceased. This view is strengthened by the fact that although many supernumerary officers received one & two years half-way from Virginia immediately after the war, no where does it appear that any one was paid both in a linear and a staff capacity. The idea of supernumerary staff service does not seem as that lame to have been entertained. It is further strengthened by a consideration of the few cases wherein staff commutation and interest was allowed. Wyatt Coleman, Lt and Adjutant, [illegible] Brown, Capt & Paymaster and James Harper, Lt and and Quartermaster all recovered judgements in the Court of Appeals for commutation and interest and was paid both in their linear and staff capacities. But in all three of these cases the officers held their staff appointments and performed staff duties to the very close of the war. The
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4
staff commutation and interest was paid, because at the close of the war they were actually receiving pay in a staff as well as a linear capacity. The case however was different
with Holmes. His staff service ceased when he was taken prisoner and though all actual linear service ceased at the same time, still as he continued to hold his commission as Lieutenant and was regarded as being constructively in service as such, he received the commutation & interest due to his linear rank.
The decisions of the Court of Appeals of Virginia referred to in the foregoing cases were rendered sixty years ago, and the principles then settled by them have been long since altered by the same Court. Under those decisions no officer was entitled to commutation or to half pay who did not serve until the 22 April 1783 the period fixed by Virginia as the actual close of the war. But in
1830 the subject was again revived and the Court of Appeals in more than one case decided that supernumerary Officers were as much entitled to the benefit of the half-pay
act of May 1779 as those who served to the end of the war. Shortly afterwards the act of 5 July 1832 was passed, by which the obligations which Virginia had incurred towards the officers of her state line, were assumed by Congress.
In adjudicating claims under this act, it has been settled in numerous cases by the Head of the Department that an officer who held a staff appointment at the time he became supernumerary was entitled to half pay both in his linear and staff capacity. If therefore the claim of Lt Holmes had never been settled by Virginia
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5
and was presented for the first time, to be adjusted by this office under the act of 5 July 1832, there can be no doubt that his representatives would be entitled to half pay both for his linear and staff services. How far the refusal of the accounting officers of Virginia in 1794 to allow the staff commutation and interest should affect the present claim, can best be determined by the Commissioner:
As the act of July 1832 direct that unpaid claims shall be settled on the principles already decided by the Supreme Court of Va it has been customary of course to pay great respect not only to those decisions but to the action of those whose duty it was to carry them into effect.
But the Department has never felt itself bound by the construction which a ministerial officer in Va may have given either to a judicial decision or a legislative act, and in more than one instance has adopted a different interpretation
If it be assumed that the representatives of Lt Isaac Holmes are entitled to the half pay due for the staff services of decedent the question arises to whom shall the money be paid. A conflict has arisen among the heirs and two administrations have been granted on the estate to different persons and by different Courts. The following are the facts of the case as disclosed by the evidence on file.
I Isaac Holmes died in the County of Nottoway
Va
sometime between the 7 of May 1789 and the 4 of April 1793. The precise date of his death is not shown. He left surviving him four or five children, only two of whom surd [survived] to March 20, 1793.
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6
are now living - viz: John B Holmes of Tennessee and Vivion B Holmes of McDonough County Illinois. Two of his other children left numerous issue, who reside principally in Virginia.
In the early part of 1859, Mr Vivon B Holmes authorised Mr. Henry Northup of this City to attend to and prosecute the claim of his father, and on the 20th April 1850 executed a power of attorney conferring this authority on him. In this arrangement John B. Holmes acquiesced, but did not unite in the power of Attorney.  Neither of these gentlemen obtained letters of administration upon the estate of their father, but upon application of Henry Northup such letters were granted by the Orphans Court of Washington to John M McCalla of this city who qualified on the 22 June 1850 and gave bond and security in the sum of ten thousand dollars.
In the mean time the attention of the heirs in Virginia was directed to the claim and on the 11th of April 1850, Isaac H. Smith one of the grandsons of Lt. Holmes qualified as administrator in the circuit Court of Nottoway County, the place of decedents death.  He gave bond in the sum of ten thousand dollars & obtained as his security Mr. John A Robertson who had married [marked out: two] successively two of the grand children of Lt. Holmes. He executed subsequently a power of Attorney to Mr. Wm T Barret who had ever since been engaged in the prosecution of the claim. Evidences in support of the staff service of Holmes has been filed both by him and Mr McCalla.
The only question to be considered is, who should be regarded as the rightful administrator on the estate of decedent, To determine this it will be necessary to refer to
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7
the rules prescribed by the Department for the adjudication of claims under the act of 5 July 1832, as well as to the laws of Virginia regulating the grant of administrations in estates.
On the 22 March 1851 certain rules and regulations were approved by the Secretary of the Interior to be observed in the settlement of this class of claims, and they still continue in full force.  A printed copy of them is on file with the papers in the case.  It will be seen that the 4th of these rules prescribed that "administration on the estate of a deceased officer shall be taken out in the county of the decedents domicil or in the county where he died; and the proof of the fact of his domicil or death having been in said county shall be exhibited." This rule is modified by the 5th rule which prescribes that "if after the death of an officer, the heirs shall have removed from the county of his domicil, administration may be granted in the county and State where the heirs reside" Apply these rules to the present case and it would seem that the admr who qualified in Virginia had complied far more closely with the requirements of the Department than the one who qualified in this City.  Lt. Holmes resided and died in Nottoway Co & has living there how numerous grandchildren who are entitled to a share of any sum which may be ascertained to be due to his estate.  Mr. Smith, as one of his distributees, was entitled by the laws of Virginia to qualify upon his estate and did qualify in the County & Court directed by those laws. His administration was therefore both in accord
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8
with law and with the regulations of the Department. Even if no administration on the estate of Lt. Holmes had been obtained in Virginia, it [marked out: would be] is doubtful whether that granted by the Orphans Court of Washington to Mr McCalla would be deemed sufficient by the Office inasmuch it is not a compliance with the 5th rule, which required that if after the death of an officer the heirs shall have moved out of the county of his domicil, administration shall be granted in the County, & State where the heirs reside.  None of the heirs of [marked out: Washington] Lt. Holmes reside in Washington, though the administration here was granted with the sanction of a portion of them and those the next of kin now surviving.
As the claims adjudicated under the act of 5 July 1832 as Virginia Claims, and as Lt. Holmes lived and died in Virginia, it is presumed that the laws of that state which regulate the grant of letters of administration on estates of intestates will be viewed with great respect.  By those laws jurisdiction to hear and determine the right of administration is vested in the general Court of the State and in the Circuit, County or corporation Courts according to the following rules - viz: 1. In the county or corporation where decedent has a mansion house or known place of residence; 2: if he has no such house or place of residence; then in a county of corporation wherein any real estate is owned by decedent. 3: if there be no such real estate, then in a county or corporation wherein he died or wherein he has estate.  In determining who shall be entitled to qualify
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9
it is provided that "administration shall be granted to the distributees who apply therefor; preferring first the husband or wife and then such of the others entitled to distribution as the Court shall see fit." (See Code of Virginia that 122 Sec 23 & Chap: 130 sec 4). It would seem therefore that the qualification of Mr Smith in Nottoway County was perfectly legal
It may be contended that inasmuch as both Mr Smith & Mr McCalla qualified upon the estate
of Lt. Holmes, prior to the adoption of the regulations approved 22 March 1857, that this question should be settled without regard to those regulations but with reference only to the rules which were in force at the time the letters of administration were obtained. Even
if this be admitted, it would not materially vary the case. The rules in existence at that time were silent in regard to the place where administration should be obtained and of course this was left to be determined by the laws of the State wherein decedent died. It is possible that administration may have been legally granted in such precedents exist they should not be followed. When claims under the act of 5 July 1832 were first adjudicated
the names and residences of all the heirs and their assent to the payment of money to the administrator were required to be produced, before such payment was made. This regulation was afterwards changed by a decision of the Attorney General when of date 4 March 1836 who decided that under the law the assent of the heirs
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10
to the payment of the money to the administrator could not be required.  The removal of this restriction operated in many circumstances to the prejudice of the rights of  heirs, administrators having received  money without their knowledge or consent & then refused to pay it over to them. To obviate this evil as far as [illegible] the regulations of the 22 March 1857  were framed, by which it was required that administration should  be taken only either in the county of decedents domicil or in the county where the heirs reside.  It is also required that the existence of heirs  should be found and their names & residences be stated.
   The evidence filed in the foresaid case shows that Lt. Holmes did in Nottaway Co Va sometime between the 7 May 1789 & the 4 April 1790.  But the  precise date of his death is not furnished which ought to be done before the amount of half pay due be ascertained.  Neither is suggested that an order of Nottaway Court should be required, which order should state that Lt. Isaac Holmes who was a Lieutenant & paymaster in the 2nd Va State regiment, died in Nottaway County on a certain day & there are now surviving heirs certain  heirs whose names & residences should be set forth in detail.
    It does not appear  that the administrator in Virginia or his attorney are aware that the claim has lately been called up for action by this office.
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11
It might be proper to notify them of this fact in order that both sides might be fairly heard.  It is also respectfully suggested that in case any doubt should exist as to who is the rightful administrator in the estate, the claimants should be required to  refer the whole subject to the Court in Va which has jurisdiction  over it & in this way settle the controversy.
    I have omitted to state that there is on file among the papers an order of  the Haistings Court, of Richmond City of date 22 Jan 1850 which states that John B. Holmes of Tennessee & Vernon B. Holmes of  Illinois, the two sons of  Lt. Isaac Holmes are his sole and only heirs [ previous 4 words underlined] then living.  But this is evidentaly a mistake & must have been intended to mean that they were the only sons  [sons is underlined]of Lt. Holmes then living.  On the other hand,  Mr. Isaac Holmes Smith who qualified as [illegible] in Va, state in a letter to his Atts: Mr. Barret of date 21 March 1850 that his uncle Vernon Brooking Holmes was dead.  The same statement is also made by Mr. John A. Robertson  of Amelia Co Va who married two of the granddaughters, of Lt. Holmes.  It would seem however that they must have been mistaken, as I am informed that a person represented to be Vernon B Holmes in now in this city.
Respectfully submitted
RM Heally Examiner
Page 248

postscript-
Since the foregoing was written, I have met with a decision of Secretary Ewing; which would seem to settle the question in regard to the place where administration upon the estate of a decedent should be obtained. In the pension claim of Mary Barbee, brought before him by appeal, after deciding "that the letters of administration should be taken out oat the place of domicil of the deceased," he adds, "this is not only the course legally to be pursued, but is eminently proper in the class of cases to which this belongs, as any other would subject the department to liability to fraud and imposture." (See his decision of the 12 Sept 1849. Mayo & Moultons Book page 515)
I am not aware that this decision has ever been changed.
RMH
Page 249

Cirtificates [sic] in relation to Claims [illegible] are in Washington City and payable under the 3rd section of the act of Congress of 5th July 1859

copy [illegible] 25.
Page 250

Francis A. Dickins adm'r N. A. of Matthew Pope of Virginia}
Bond  $1,800-
A. Dickins}
T. W. Dickins}  Scuty
Letters 17.Aus't 1842.
First & final acco't Oct'r 17. 1843.
Sum paid unknown

Francis A. Dickins adm'r of Joseph Hay of Virginia}
Bond #720--
A. Dickins}
T. W. Dickins} Secuity
Letters Jan'y 2. 1845
2d & final acc't Feby 10. 1846.
Sum paid unknown

Henry Northup adm'r of John Magaret of Virginia}
Bond  #200-
H. L. Northup}
C. H. James} Sec'ty
Letters, October 4, 1848.
Sum paid $951

Henry Northup adm'r W.A. of Alexander Dick of Virginia}
Bond $1,500-
H. Northup}
J. S. Hall} Seci'ty
Letters. Feb'y 2. 1841.
1st & final acc't. Oc't 4, 1845.
Sum paid $505
Page 251

Thomas I Steele Adm'r of Geo. Chamberlain of Norfolk Va.}
Bond $8,000-
T. Hoard}
T. L. Thurston} Secty
Letters, Feby 10, 1843.
Sum paid 6572.,50

W. Morton & John Marberry Ex'rs of Richard Harrison of W. C. D. C.}
Bond  $40,000-
O. M. Lintheimer}
L. M. Morton} Secr'ty
Letters June 22. 1841
1st & final acc't April 22. 1842
sum paid $2786,19

Henry Northup adm'r W. A. of John Harris of Virginia}
Bond $600-
H. L. Northup}
C. H. James}  Secui'ty
Letters Nov. 26. 1845.
Sum paid $293

Frederick Vincent adm'r of John Swope of Virginia}
Bond  $1,500-
R. A. Dickins}
T. L. Thurston} Sec'ty
Letters. Jany 23. 1846.
sum unknown
Page 252

Henry Northup adm'r W. A. of Edward Travers of Virginia}
oOnd $600-
H. L. Northup}
F. A. Dickins} Seci'tly
Letters. Sep't. 19. 1846
sum paid $1205.84

Henry Northup adm'r of John Tupman of Va State Navy} 
Bond $3,000-
Jno. Hands Jr}
Edwd. Owen} Sec'ty
Letters. June 22, 1847.
sum paid $28891, 32

William F. Purcell admr D. B. N. W. A. of Thomas Ewell of Virginia}
Bond  $3,000-
J. Laskey
J. W. Williams
Letter April 10, 1848.
Sum Paid $3046.36

William H. Todd adm'r of William Long of Kentucky}
Bond $16,000-
Tho's Triplett
J. G. Bryer} Sec'ty
Letters. Feb'y 5, 1833.
Sum paid unknown about $9000
Page 253

Enoch H. McKay adm'r W.A. of George Elliott of Tayette County, Ky}
BOnd  $16,000-
B. Hardin}
R. P Letcher} Sec'ty
Letter April 19, 18345.
Sum unknown upwards of $9000

William Lambert adm'r of George Grosby of Isaac Browning of Kentucky}
Bond $10,000
H G Asbury}
Jno M walker} Sec'ty
Letter, April 26, 1834.
sum paid $4298.08

Mathew St. Clair Clarke ad'mr of William Roberts of Kentucky}
Bond $9,000-
W. W. Seaton}
P. Force} Sec'ty
Letters. Jun 13, 1837.
sum paid $4223.36
Page 254

M. W. Wilson & others Executors of Thomas Wilson of W. C. D. C.}
Bond $80,000-
Jno Threlkeld}
Jno Davidson} sec'ty
Letter. July 2, 1824
3d & final acct. Dec'r 20. 1827

True copied 'Extracts.'
Test: Ed. N. Roach R[illegible]
April 29. 1853

Of those eighteen cases thus given where administration has been granted in the City of Washington- the application was made by  H. Northup to the Clerk of the Orphans Court handing in a cirt of such cases as he believed administration had been granted, [illegible]. Of such as those handed in there were some few cases that the administration was elsewhere, but of those Va Claims that audit and paid at the treasury there can be no doubt that many more will be found to have administered at Washington City.
Of the foregoing 18 cases thus administered on five will be found to have been provisions to this decision granted by [illegible] in Moodys case Northrup in 15 Peters page 1st and the other [illegible] since Aud t2wo of them. To wit Washington and [illegible] administration [illegible] of the [[illegible]
Page 255

found to have been previous to this decision quoted by Mr Green in Moody's case Esq. Northup in 15 [illegible] page 1st and then other decisions since and two of them to wit Worthington and Spencers and an [illegible] [illegible] six [illegible] thereafter the decision of the Secretary Ewing also quoted by Mr Green in the case of his Barber Case but now this case of Holmes is claimed to be excepted from the general practice
But setting all controversy aside if this decision quoted by Mr Green is a good and valid rule and decision to wit that administration shall be had in the County of the claimant of the party without regard to time when there is assets to admin on be whether it shall be for all coming [illegible] in whither Sixty years afterwards per ten times sixty and where and when there is no assets in such [illegible] is to be observed and adhered to - I will in reply [illegible] to another law and [illegible] of prior date and which has never yet been disputed See Blackstones Commentaries 2nd Book Page 517, third Book Chapter the page 217, decisions from which their case be and appeal as to who the right of administering pertains to to wit to the next of kin to wit the widdow [sic] first, and the Children next
This right is claimed & acquiesced in and the Claim filed by the Agent of the two living sons as early as 17th or 18th of Feby 1850, some two months before this grand Child administrator filed his application See John R Holmes letter of 23rd Jany 1850. and also to Vivian B Holmes Power of Attorney &c. under which [illegible]  Gen McCalla to admin, I trust that the statements from the Clerk of the [illegible] [Orphans ?] Court showing the [illegible] [illegible] at all times admitted of administering here and the [illegible] of the department in paying all such claims untill [sic] this of Holmes - with the Authority  quoted as to who shall administer. will prove satisfactory to the Hon Commissioner of Pension as to our prior right
Respectfully
Henry Northup
Page 256

A /

Fee 35 cents
Page 257

At a Court held at the Capitol in the City of Richmond for the District composed of the Counties of Henrico, Hanover, Chesterfield, Goochland and Powhatan on Thursday September 12th 1793.
Vivion Brooking administrator of Isaac Holmes late a lietenant [sic] and paymaster in the second Virginia State regiment appellant against The Commonwealth}
Upon an appeal from a decision of the Auditor of public accounts refusing to issue to the appellant certificates or warrants for commutation in lieu of half pay for life.
This day came as well the appellant by his attorney as the attorney general for the Commonwealth, and thereupon the appeal aforesaid and sundry papers produced in evidence being read and examined and the attorney aforesaid fully heard the Court in of opinion that the appellant is entitled to five years full pay in commutation for half pay for life and that the decision aforesaid is erroneous.  Therefore it is considered that the same be reversed annulled and that the auditor of public accounts issue to appellant certificates for the said five years full pay bearing an interest at the rate of six per centum per annum from the twenty second day of April 1783 the day on which the troops raised for the late war were discharged in this State.  From which judgment the attorney General on behalf of the Commonwealth prayed on appeal to the next Court of appeals which is allowed.
I John Mosley Clerk of the Circuit Court of the County of Henrico, having in my custody the records of the late District Court, do hereby certify that the foregoing is a true transcript from the records of said Office.
Teste John O Mosley Clk: Cir Ct:
of the County of Henrico Sep:12th 1853.
Page 258

Virginia to wit:
At a Court of Appeals held at the Capital in the City of Richmond the 24 day of April 1794
The Commonwealth
against
Vivion Brooking administrator of Isaac Holmes
late a Lieutenant & paymaster in the second
Virginia State Regiment. ....... appellee

upon an appeal from a Judgment of the District Court held in Richmond the 12 day of
September 1793 whereby it was considered that the Auditor of public accounts should see to the appellee certificates for five years full pay in commutation for half pay during life bearing an interest at the rate of six per centum per annum from the twenty second day of April 1783 the day on which the troops raised for the late war were discharged in this State.
This day came as well the Attorney General for the Commonwealth as the appellee by his counsel and the Court having maturely considered the transcript of the record of the Judgment aforesaid is of opinion that there is no error in the said Judgment, Therefore it is
considered that the same be affirmed.
Which is ordered to be certified to the said District Court.
pay of Lieut. of infy. p month L 8

A copy
teste
J Brown C C A

Auditors Office Va. 17 October 1851
I certify that the foregoing is a true copy of a paper now on file in this office
Ro Johnston
First Aud
Page 259

am certif
8
12
96
5
L 480-   5 yrs full pay
96     
576        annl int
10
5760
288
96    8 months
6144
12 - 8 days
6156
L 307.16.0

Recd Wts & Cert for the above
Vivion Brooking Admr
of Isaac Holmes
The claim to Commn. on the Addl pay as a paymaster is suspended for the present

Auditors Office Virginia
17 October 1851

I hereby certify that the foregoing is truly copied from the paper of which the within is a true copy & that said endorsement with the exception of the signature of Brooking, is believed to be in the handwriting of Mr Pendleton the Auditor of the State
Ro Johnston
2. Audr.
Page 260

Abstract of claims allowed by the Commissioner of Pensions, paid through the Third Auditors Office, under the act July 5th 1832, for liquidating and paying certain claims of the State of Virginia, from Augt. 8, 1849 to 12, March 1850

Names of Officers, Rank, Allowed, Amount, Remarks

Applewhaite John, Surgn Navy, Feby 5, 1850, 6.061, 70, 5 years full pay & Int. 
Barron James, Commodore, Jany 2, 1850, 32.382, 50, 5 years full pay & Int.
Barron Richard, Capt. Navy, Jany 8, 1850, 11.215, 78,5 years full pay & Int.
Banks James, Sailg. Master, Feby 2, 1850, 5.734, 12, 5 years full pay & Int.
Britain John, do., Feby 15, 1850, 5.364. 24, 5 years full pay & Int.
Dabney Charles, Lieut. Col., Jany 24, 1850, 4.198, 20, Correction of error
Grier Charles, Surgn, Oct 13, 1849, 5.248, 97, Correction of error by Hate
Graves William, Cornet Cavry, Oct 24, 1849, 15.389, 78, 5 years full pay & int.
Gibson John, Sailg. Master, Decr 11, 1849, 409, 99, half pay @ $152.48 per ann.
Grier Charles, Surgn, Jany 21, 1850, 4.662, 75, additional interest
Gooseley George, Capt Navy, Feby 8, 1850, 7.979, 24, 5 years full pay & int.
Herbert Pascow, Lt. Navy, Feby 2, 1850, 5.928, 50, 5 years full pay & Int.
Johnson Gideon, Qr. Master, Jany 25, 1850, 4.343, 82, Half pay for life
same, Capt. & Qr. Mr, Mar 5, 1850, 1.155, 60, Half pay for life
Kennedy James, Capt Infy, Nov 22, 1849, 3.672, 84, Half pay for life
Minor Thomas, Capt. Infy, Jany 22, 1850, 2.400, 00, Half pay for life
Malcolm James, Capt Navy, Feby 24, 1849, 7.137, 41, Half pay for life
Marshall J. M., Lt. Troops, Feby 28, 1850, 672, 33, Half pay for life.
Quarles Wharton, Qr. Master, Feby 19, 1850, 1.797, 42, Half pay for life
Roe William, Surgn Mate, Feby 9, 1849, 1.608, 50, Half pay for life
Rogers John, Capt. Cavly, Nov 23, 1849, 12.337, 94, Half pay for life
Roberts John, Lt. Line, Jany 31, 1850, 5.986, 63., Half pay for life
Russell Charles, Paymaster, Feby 5, 1850, 2.454, 90, Half pay for life
Page 261

Continued

Names of Officers, Rank, Allowed, Amount, Remarks

Spencer William, Lt. Cavalry, Feby 4, 1850, 9.725, 91, 5 years full pay & Int.
Travis, Edward, Capt. Navy, Feby 14, 1850, 11.363, 21, 5 years full pay & Int.
Vowter, William, Lt. Line, Jany 28, 1850, 1.867, 44, Half pay for life
Walls, George, Maj. Line, Oct 13, 1949, 1.045, 23, In addition to a judgt.
same, do., Jany 4, 1850, 1.403, 55, Int. on judget, additional
Welsh Nathaniel, Capt. & Qe. Mar., Feb 19, 1850, 9.684, 16, 5 years full pay & Int.
Worthington Edward, Capt. Troops, Mar 19, 1850, 7.149, 50, 5 years full pay & Int.

Treasury Department
Third Auditors Office
October 9th 1852.
Page 262

Mr. Green's Brief
Page 263

Washington 28th Sept. 1853

To Hon. Ro. McClelland
Sec. of the Interior

Sir.

Understanding you could not yield to my request to allow the case of Isaac Holmes admin to await my return from the country where I am compelled to go for a few days I must pray your indulgence, for the crude and undigested form in which this party reply will be presented to the voluminous, laborious, and able Brief Mr. Pritchett.
It commences with a statement of the case but no where gives a copy of the Judgment of the Court of appeals of Virginia in 1794, directing the commutation to be paid for the services of Isaac Holmes "as a Lieutenant and Paymaster  under which we claim although a copy of the less explicit Judgment of the District Court under which we do not claim is given. This, of course, was inadvertent. But as the Court of Appeals, had the power not only to affirm or reverse a judgment but to amend and direct
the form in which the court below, ought to enter judgment in any case it is material to a correct view of the question to keep before us, the fact, that the court of appeals, in this Case
directed the commutation to be paid for the services of Isaac Holmes "as a Lieutenant and Paymaster." 
That was the form in which other Judgment had been entered for the services of officers, in two  capacities, under which commutation was paid in both, and makes it the more extraordinary that the auditor should have "suspended for the present, the additional pay as paymaster". There is no reason for supposing he meant to question the propriety of the Judgment, that he doubted its true meaning. He postponed it probably because
no previous commutation had been paid to a Paymaster who was also an officer in the line
and he preferred to take
Page 264

2.
time to ascertain what was the additional pay, in such Cases, a question of not the easiest solution, even at this day, and upon which, conflicting opinions and decisions have been made by public officers within a few years past.
On page 4 of the Brief it is stated "The claim as presented is for commutation and interest as a supernumerary, for staff rank &c." This, I respectfully submit, is a mistake. I certainly meant to present no such claim & if any thing be in the papers to justify such an inference, I am not aware of it.
The claim is, for the commutation, adjudged, by the highest Judicial tribunal of the State, to be due Isaac Holmes as pay master, who was taken prisoner in service, and remained a prisoner to the end of the War
This leading error, it is manifest, pervades the whole Brief. I do not say it, from the least disrespect. On the contrary, no one can read the paper, without entertaining a high consideration for the writer who has elaborated a sort of Institute on the subject; but from a want of familiarity with the local history, & too great a reliance on the opinions and statements of distinguished persons who had themselves written hastily on the questions involved, W. Pritchette has not been able to collect, and present in one view all the facts which belong to the case, as I will attempt
to show.
We do not claim for Isaac Holmes services as a supernumerary in any shape or form, real or constructive.
There is enough, in the papers to awaken suspicion that Holmes was a supernumerary officer, and the earnestness the industry, the zeal and ability with which the scrutinizing examiner pours over the old laws and records and establishes "conclusively" as he supposes and says that Holmes was a supernumerary when taken prisoner might be amusing
Page 265

to one more familiar with the subject, if the consequences did or not appear more serious.
It is true, Holmes says himself, in his petition that his regiment became supernumerary-- it is true, Holmes recd. half-pay as a supernumerary - that the Board of Officers in 82 reported him as supernumerary, and that his name stands upon that record as such. Several other admissions might be made all
tending to show conclusively, as it might be thought that Holmes was really a supernumerary officer and got an erroneous  Judgment against the State; a Judgment for commutation, when it is unquestionable
and unquestioned, that a supernumerary officer is not entitled to commutation. 
If Holmes was a supernumerary staff officer,
he was also a Supernumerary officer in the line.
All the evidence shows that. It is true, the parol, (which is actually relied on to show he could not have been a pay master in service when captured,) signed by a British officer, describes him as Lieutenant and does not say he was also a paymaster. It seems to me it is about as strong, as would be proof that a brother officer 
saluted him on some occasion with "Good- morning Lieutenant Holmes" -  instead of saying "Good- morning Lieutenant and Paymaster Holmes" -
But what are the facts? In the first place, let me remark it not usual to over all the law & all the facts in each & every case. When certain laws and matters of history, are fully established and universally admitted, in a department, it is waste of time to reaffirm & prove them in subsequent cases. So in Holmes' case, the Court of appeal having adjudicated that Holmes was a prisoner of war, as a Paymaster and continued as such prisoner to the end of the war, & thereby became entitled to commutation & well knowing that such a
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Judgment according to the practice of the Departments superseded the necessity for further proof, we did not attempt to show Holmes' precise history or to explain some
apparent incongruities in the several statements about him-
The facts are these. Holmes was a Lieutenant and paymaster in service on 10 May '81 when he was taken prisoner and was paroled on 25th of same month, and remained on parol to
the end of the war-
In the rearrangements and return made of the Regiments in Feb 1782 the Board not knowing what to do with Holmes but knowing he was not in service returned him as supernumerary
in order that he might get his Half-pay, not imagining; for a moment, that he, (out of service) ought to be entitled to full pay while at home on parol.
The Report of the Board was returned to the auditors by the Executor as a guide in issuing the certificates of pay or Half-pay - The law directed the auditors to issue, yearly, the certificates of Half-pay to the officers accordingly on the 22nd Nov. 1783 when Holmes applied for his the auditors
gave him a certificate for his Half-pay for one year, ending 31 Decr. 1782. If he had deferred his application a few weeks & no intervening 
obstacle had arisen he would have got a certificate for two years half-pay - He recd this certificate for one years Half-pay - beginning
1st January 1782. It is absolutely conclusion of the fact that he drew Half-pay from that day only and is equally conclusion that he was not a supernumerary before that day.
While the payments to other officers, made by the Auditors in Nov. 83 were for two & three years half pay according to the facts, whether
the officer had been two or three years, supernumerary, going back to the very day, when each one, became supernumerary,
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they gave Holmes a certificate, in substance asserting that he became supernumery [sic] on the 1st January 1782 - and this, they, of course, believed - and so Holmes, no doubt, believed was the result of the law, upon the facts of his case-
But his counsel, or subsequent public opinion, created a different impression, the determined to try the questions by suit.--The result was, the court decided an officer on parol [sic], a prisoner, to the end of the war, had the same right to commutation, as if he had, in battle, been taken prisoner & kept in the enemy's dungeon till peace.  This was a reversal by a competent tribunal, of the report of the board, that Holmes had ever been a supernumery [sic] - a reversal or nullification of Holmes admission, by drawing the half-pay, that he had become supernumerary. 
I submit, herewith, a paper, marked z being a memorandum from the auditor's Books at Richmond, of Half pay payments in Nov & Dec 1783 - showing the particulars of those payments to the Eight officers named, beginning with Major Magill & ending with Dr. Dixon.
I send the memd'm in this rough form, because time is not allowed me, to get the official evidence, to repel this new objection, so unexpectedly made, & so plausibly made - although it arises solely from the fact, that the objector was not familiar with the local history of the supernumerary question.  It was hardly possible that he should be, - the manner in which he raised the question & presented it, is a compliment to him, although his conclusion is as far from the fact as pole from pole.
It may not be amiss, in this connexion, to quote a paragraph from an endorsement, made by the auditor in Nov or Dec'r 1783, on the reports of the Board in 1782.  After referring to many officers, not appearing before the Board or making returns to it, it proceeds:
"The time of the Half-pay commencing, could not possibly be fully ascertained in the foregoing list, as but few of the officers
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have applied for their warrants, and many are not, for some time to come, entitled to warrants, because it is not a year, since they ceased to receive full pay" -
This shows that the prime time of the commencement of the half pay was ascertained, when the certificate was issued --  It shows too, that while the 5th Feb. 1781, the period of the first board, was the commencing day with many officers, it was always to be controuled [sic] in each case, by the actual fact when the officer did become supernumerary -- And this has been the uniform adjudication of the Courts.
In Home's case, there is not a shadow of evidence, that he was a supernumery [sic] before 10th May 1781.  The records of the Auditor's office show he was not considered in that light till 1st Jan'y 1782, even if the Judgment of the court had not settled the question, & corrected the erroneous impression, that he could properly have been considered supernumerary at any time --
The decisions of those boards, have always been regarded, as ex parte proceedings -- not binding on the officers -- Every officer, discriminated by the Board, as unfit to receive to receive [sic] Half pay -- has nevertheless received it, through the courts and by open surrender by the Government, that it was no part of the contract, that an officer could be deprived of his Half-pay by an ex parte proceeding -- Those proceedings are not even admissible as evidence -- on the trial of such a question --
Regarding the whole foundation, of the argument of the Brief, on the Supernumerary question, as entirely removed, by these explanations & references to the records, the larger portion of the Brief falls to the ground.
There are several positions taken in its averments, that could just as satisfactorily be annihilated, as this whole hypothesis about Holmes being supernumerary, but I regard it as unnecessary, as they relate to that branch, which is dismissed for the present--
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at all events, the few moments of time, to which I am necessarily limited, will incur further comment, without creating an impression that the points are avoided --
It is not contended, that Va. is not liable for Holmes' claim -- She is liable -- and no doubt is entertained of her paying it.  But then she will, instantly, demand its return from the U. S. -- Why then this circuity?  We contend the U. S. Have directed the payment of his claim.  If we are in error, we will look elsewhere--But it is regarded as somewhat exceptionable to go against Va, until the U. S. shall refuse to pay -- There is no act of limitation either in Va. or the U. S. that applies to the case. Both of these points are made in the Brief -- We do not pretend that Virginia is exhonerated [sic]. In all the other cases, provided for by Congress, in 1848, the U. S. refused payment, --Va: was then sued & pay'd the claims -- the act of 1848 was then passed -- & the department adopted it, as a legislative construction of the act of 1832.
The Brief -- pa. 11 & 12 admits the courts of Va. had construed the act of 1780, as giving commutation; but intimates that the U. S. was not bound, for that extended liberality to the officers, because the law was not passed prior to 23 Sept. 1788-- It is sufficient answer to say - we assert no claim against the U. S. under those old laws -- but under the laws of 1832-1835- & 1848--
The position taken on pa: 12 of the Brief, et seq -- seems to admit that an officer in service to the end of the war, & holding a staff-appointment, is, under the decisions of the courts of Va, entitled to the Commutation for the latter ranks. But he denies it to Holmes because he was a supernumary [sic].  Now as I have shown he, as a prisoner of war to its end, was on the same footing of actual service to the end of it, the admission cover the case.  Whether admitted or not, it is undeniable that the act of 1832 assumed the obligations, as indicated by the principle decided in her courts, and it is equally undeniably, that the
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courts gave the Commutation for the Staff service as well as the linear rank, and that Holmes was in a position that entitled him to both -- So that if Commutation would be due by the U. S., at all, to him, (if he had rec'd nothing) it would be fore his staff as well as linear rank.
It occurs to me, an argument may be drawn, against the staff claims from the fact, of Holmes receiving Half-pay in Nov'r 83 as Lieut: & not also as Pay master-- But it is notorious, that the settlements by the officers, for the deprecation accounts, were made over & over again in numberless instances. They would settle one day as of the line, & the next or shortly thereafter, as for the Staff service.  Copies from the record in fifty or such cases might be pointed out in a few hours.  And the prohibition on the 22 Dec'r 1783, of all further settlement of Half-pay cases, put an end to it.
The Statement of page 1 of this letter -- may be too strongly made.  The extract on Pages 15 & 16 of Brief from the Judgment of the Court of Appeals in 1794, may be more full that I supposed, on the first hasty readings-- I do not see what portion of the Judgment is omitted -- possibly none that is important.  I therefore take back my complaint, -- that it was not fully copied.  I have no opportunity at present to examine the certified copy.  Enough is presented however for our purpose, The commutation, in lieu of half-pay for life, is directed to be paid for the services "of Isaac Holmes, late a Lieutenant and Paymaster in 2 Va. Regt.  The auditor is directed to issue "certificates" in the plural, perhaps because of the double capacities -- a certificate for his services as lieut, & a certificate for his services as Paymaster, -- There seems to be certainly no reason why the payment, might not legal have been for the Paymaster's services, "Suspending for the present" the Lieut's pay -- as vice versa.  It being the edtablished usage of the office, to pay for the staff service as well as for linear service.
The astute commentary, that the words "pay of Lieut: of Infy pr. month £8" may have been (for what appears) a part of the Judgement --can easily be overthrown; by a certificate from the auditor
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that these words are in a totally different hand writing and were beyond all doubt, part on the certified Copy of the Judgment after it was handed to the auditor
The probability is the paper was handed to some person in the office, a subordinate - to say what was the commutation due. He readily, noted the monthly pay of the Lieut. but as no paymaster holding lineal Rank also, had been paid, altho other staff officers had been, the clerk was puzzled, as the officers of Govt: are at this day, to say certainly & precisely what was the additional pay as paymaster in such a case. And the probability is that the endorsement by the auditor in these words "The claim to Commutation on the additional pay, as a paymaster, is suspended for the present." was made because the Auditor could not, then, decide what that sum was. The subject may have been entirely forgotten by the admin. It certainly is no remarkable occurrence for a man to neglect the interest of
other persons-
I respectfully ask time to procure official proof from the records in Richmond to show- 1st The entries from the Day Book of the auditors office in Nov. & Decr 1783, showing the precision with which the Half pay settlements were made with the officers & particularly in Isaac Holmes case, and 2nd that there is not the slightest ground in reality, for supposing the above mentioned note, on the Copy of the
Judgment on Holmes, was a part of that Judgment.
ps 18 to 26 of Brief-- refer to the circumstances under which the law show that Commutation was not intended to be paid.
was in fact disavowed by the Commissioner of the State at the time & not intimated in the Report of W. Barbour the Chairman of the Committee.
We say in answer the declaration of the Commissioner, was too general if he meant to say more, than that Va had not, at any time during the war, commuted her half-pay.
That she did commute it in 1790 to all who served to the end of the war, if those chose to accept the commutation, is not only proved by the act itself, but the Commissioner furnished the evidence of the payments, under that law, of commutation
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and asked that the same should be refunded- they are spread out in the Report as  commutation cases, adjudicated under the law
of 1790. In the heat of discussion the Commissioner may have over looked the hearing of the facts he was furnishing at the very time. He furnished the evidence of 16 Judgments against the State, for commutation
under the act of 1790, and asked that the amount should be refunded and it was refunded, under the first section of the Bill. It proves that the commissioner furnished the facts to Congress, that these judgements were
for commutation under the act of 1790. The Court of Appeals, in the decisions in Markham & Lilly's cases in 1830, (which constituted the very foundation of the act of 5 July 1832) referred to the earlier decisions of that Court, a few years after the passage of the act of 1790, construing it as giving commutation to all officers in service at the end of the war. It cannot be said therefore, the true state of the case, was not presented to Congress, 
notwithstanding the hasty opinion inadvertently thrown out -
The Report of the Committee of the House, altho not so extensive in its demands as we now claim, was pretty general, in asking the repayment to Va of all the money she had paid, also a provision against the large class of Judgments, then recently obtained against her, & finally that all similar cases should be provided for.
The House passed the Bill - it went to the Senate, and there received on the motion of Mr Tazewell, the important amendment of the 3rd Section upon the avowed ground that the House bill did not go far enough. He maintained be should be protected throughout against these claims. She had resisted them at every step. If she had paid them promptly, the U.S. were bound in honor
by the general law to reimburse her. She thought they were not just, had resisted the payments, till her remedy against the U.S. was lost, & now he had to meet the heavy expense incurred, for the general defence [sic].
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The Senate concurred with Mr. Tazewell-- the 3d section was inserted in the Bill & covered cases amounting to three or four times the aggregate of the House bill. No matter what was the original petition of the State Commissioner, or the intention of the Committee of the House, prior to the amendment known as Mr. Tazewell's (altho perhaps drawn, at his instance, by another
distinguished representative of Va) the true intent & meaning of Congress is to be gathered from the amendment made in the
Senate, and not from the petition & Report alone, on which the original bill was founded.
This 3rd Section directed the settlement of all those half pay claims, not provided for in the 1st & 2nd sections, but for which Va would be bound "as the principles already decided" in her supreme Court of Appeals. No one can doubt, but that it was the intention to indemnify Va against all the officers claims, for which she was bound, on the principles already decided, by her courts. It was not intended to commit the U. S. for any future decisions-- but so far as the principles were already decided, the law adopted them and whether right or wrong, they became a part of the law - The House of Representations concurred in the amendment, & whatever had been the intention at first, we are bound to regard that body as concurring fully in the views of the Senate, when its amendment was adopted, altho' that amendment, may have gone five or ten fold beyond the first intention of the House.
The 1st section of the House bill, provided for refunding to Va a certain sum, "on account of the Half-pay cases" &c. That sum was the precise aggregate of 42 claims paid by Virginia
which were recited at large in the Report & documents of the Committee, which made manifest the fact, that 38, of the 42 cases were for Commutation and four only for half-pay proper, altho' the section described them all as half-pay cases. This is repeated, to show that commutation cases were considered as half pay cases. The conclusion cannot fairly be avoided. Nor can they be excluded by any rational
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Philological distinction-- The half pay cases generally were for an indefinite length of time-- so long as the officers should live-- but if they chose to accept the certain amount of ten years half pay they might so commute the indefinite duration of half pay for life and those half pay claimants, who were in a position, to claim this ten years half-pay, were said to have commutation claims. The act of 1790 did not compel or require any officer to accept commutation altho it permitted certain classes to do so, if they chose. Every conceivable case was therefore necessarily a half-pay case with the privilege to a certain portion, to elect to take commutation, or the round sum for ten years, in lien of the  indefinite half pay for life.
The U.S. commutation cases were different in that respect. The law, when accepted by states or Corps became binding on all the Va. act of 1790 was no contract. It was a liberality extended voluntarily to each & all within its purview, which he might accept or reject at any time he chose. Hence every claimant, as long as he was unpaid, was a half pay case, altho some of them had the right to elect commutation.
This being the state of the case, and having paid $139, 543:66 to 42 claimants, of whom 38 received the commutation, the first section of the act of 5th July 1832, was passed in these words viz: "Be it enacted & that the proper accounting office of the Treasury do liquidate & pay the accounts of the Commonwealth of Va and the U. S. for payments to the officer commanding in the line in the war of the Revolution on account of half pay for life promised the officers aforesaid by that commonwealth, the sum of $139.543.66.
Of the act of 1790- specially noticed in Markham & Lilly's cases, as being uniformly adjudged by the courts, as giving  commutation in certain cases, on account of the promises of half-pay for life,-- we are bound to presume congress had knowledge
as Markham & Lilly's cases constituted the basis of the law of 1832, which law adopted the very principles decided as a part of the future law of the land
What more appropriate expression, could be used by congress, in directing the $139.543.66 paid by Va to her 38 commutation claimants & 4 other half pay claimants
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than to speak of the several payments made by her as on account of half pay for life promised the officers by her?
Her promise in 1779 was half pay for life-- by the act of 1790 the privilege of adjusting the accounts, under the foregoing promise, by taking commutation in certain cases was conceded-- & many were adjusted accordingly
but all on account of half pay for life promised by Va. to her officers
The Second section of the act of 1832 provided for satisfying contain Judgments then outstanding, in favor of officers of various Corps-- the whole according to the Report of the Committee, which specified each one by name, amounting to precisely $241345- which is the sum appropriated by that Section, which
also provides for the Navy.
The 3rd in the most important section of the Act and is as follows, "and be it further enacted: That the Secretary of the Treasury be and he is hereby directed, and required to adjust and settle those claims for half pay of the officers of the aforesaid regiments & corps, which have not been paid or prosecuted to judgments against the State of Va. and for which said state would be bound on the principles of the half pay cases already decided in the Supreme Court of appeal of said State &c. with an appropriating clause
By this section, the U.S. "to adjust & settle those claims for half pay not above provided for and, for which said State would be bound on the principles of the half pay cases already decided." I have already endeavored to show that all of these Va. officers demands, "are claims for half pay", and that the act of 1790 indicates how those claims for half pay, may be adjusted and settled in certain cases.
This act throws the burthen of adjustment and settlement of those claims for half pay on the U.S. Every one having a claim for half pay against Va. is authorized to present it at the U.S. Treasury. It accounting officers are to adjust & settle them. How are they to adjust them? upon what principles? Just as Virginia was bound on the principles of the half-pay cases, (then) already decided. among the principles decided, none was more clearly settled, than that a portion of the half-pay claimants, should have commutation, if demanded -
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The claimant is permitted to apply at the U.S. Treasury  which is directed to pay him.- To pay him what? that just claim for which he had against Va. - that claim for which he was  bound on the principles of the half pay cases already decided by her her Courts
A. comes forward & even he served the whole war & demands pay. He is a half pay claimant - his contract entitled him to half pay. The adjustment begins-- he asks the accountant to look at the act of 1790, & he will see a pledge, binding on Virginia, that he shall have a large sum, than the accountant contemplated. The accountant. B. hesitates & says yours is a claim for half pay & I am willing to give you, half pay. A. I admit mine is a half pay claim, which you are to adjust and settle, but you are to settle the claim according to law. the Va. law, which is the only law applicable to the case; and that law of 1790, allows me, on this day, to elect either of two modes of settlement, and I choose that one which will give me the largest amount. Va is bound, unquestionably, by this promise-- My half-pay claim must be settled legally & it is strictly in accordance with the laws of Virginia, that I shall have the sum of $[blank] in satisfaction of my half pay claim; By calculation I find the sum due me under the act of 1790 comes to $[blank], upon what legal ground the you hesitate? B. You are demanding Commutation I do not see that word in the act of 5 July 1832. I regard commutation as one thing and half pay as very different. If your position in the Army makes yours a commutation claim I am authorsed [sic] to make no settlement with you whatever. If you did not serve to the and of the war, I will regard Yours as a half pay claim & I will allow you the half of your annual pay to this period-
A. This is rather high ground that you will not settle my accounts, because I was in service to the end of the war. My contract in 1779, was that I should serve to the end of the war, & if so I was to have half pay for life. I have made no other contract - Va has not even proposed to me any variation, except that in 1790, seven
years after the war, (when the certainly had no right to change
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the contract, in any respect, without my consent) she voluntarily pledged herself to allow me in the settlement of my claim, which is a claim for half pay, in law & in fact, a larger sum than I contracted for. To say, you will not settle my claim because I served to the end of the war, is therefore out a shadow of excuse.
B. I admit yours is a Half pay claim, under the act of 5 July 1832 after the explanation you have given, notwithstanding you served to the end of the war and may be, for that reason, considered as coming within the class of Commutation cases. But I can allow you half pay only. A. The act of 5 July 1832, has not directed you what to allow me. It says you shall settle my claim-- mine being by your admission, an unsettled claim for half pay under the act of 1779. By that act, I am entitled to half pay for life-- not the rule of half pay then presented, but the half for life, of any 
higher pay the state might choose to allow her officers, at any time during the war. And if the state during the war could increase the pay, and thereby fix an obligation on her for my life, she may, after the war prescribe any other more favorable mode of settlement. By the act of 1790. she has extended to me the same compensation of half pay, which was allowed to the Continental officers the Courts have decided that was equivalent, to commutation-- altho' that word, is not in the law of 1790, any more than in that of 5 July 1832. I demand you shall settle my claim, and in the settlement, you shall allow me whatever the laws of Va fairly gave me - on the principles of the Half pay case already decided in 1832-
B. I confess I do not see, how to avoid your conclusions but this class of commutation claim has been greatly resisted under the act of 5 July 32 - and the House of Reps a few years ago, passed a resolution that it was improper to allow them under this act the navy claims especially and we feel embarrassed by that action -
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A.
Fiat justitia ruat caelum, is an honest maxim, and no public officer, who follows it, will to censured by the public-- let him be sure he is right, before he wastes the public treasure but justice requires him to investigate thoroughly & then to act regardless of popular clamor
Doubts having arisen immediately after the passage of the act of 5 July 1832 whether commutation cases were payable-- the House of Reps in Feb. 33 passed a bill for the removal of those doubts. But it failed in the Senate for want of time. The next Congress, in directing this law to be executed by the War Dept. introduced the words deficiency of Commutation with no other view it is believed those remove all doubt on the subject. Why the commutation, should be mentioned at all
is beyond the wit of man to conceive if it were not that the Department should settle them as well as the other Half pay cases-- The 4th sec. of the act entitled ""an act to continue the office of Comr of Pensions, approved 3 March 1825 diverted of its verbiage is. That the duties heretofore required to be performed by the Secretary of the Treasury in relation to Virginia claims for Revolutionary services and deficiency of commutation, be and the same are hereby transferred to & made the duty of the Sec. of War" from 1st June next
The terms of the transfer, shew that the War Dept, was to act on cases for deprived of Commutation. That duty is necessarily implied 
or the language used, had no meaning at all-- which is not to be presumed.
The peculiar phraseology of this act, escaped attention. The department having declined to pay commutation the claimants sued Va. & recovered Judgements for about $80000. I was appointed the Commissioner of the State to recover this amount from the U.S. as so much due under the act of 5 July 1832. I filed the able opinions of Mr Patton, Chapman Johan, Jas. Lyons, and the atto: Genl. that the commutation cases, were Half-pay claims & were so considered by the Courts of Va.
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The petition or Memorial filed by me, after being almost laughed out of the House on the first vote taken, was finally granted in the act of 1848 upon the avowed change of opinion, by the opponents. See the Remarks of Mr. Phelps on paper marked K. This was regarded as a legislatur interpretation of the act of 1832.
The attorney General, R. Johnson, who had made a speech in the U.S. Senate in favor of this claim, gave it as his opinion in Genl. G. R. Clarkes case, I think, that this ought to be regarded as a legislatur interpretation or construction of the act of 1832.
Mr. Ewing & Mr. Stuart sustained the same opinions. But Mr. Ewing allowed certain naval commutation cases, which was deemed, as not within the principles of the V. half-pay cases as decided before 1832, and in consequence of this supposed extension of the principle, a committee was missed in the Sto. of Repts. which reported against the justice of all commutation cases. And the House in a moment of political excitement, for it evidently was such, passed the resolution - but it was asserted in the Senate & was not even passed by its friend from the House. I was informed, its warmest advocates in the House, because convinced, the resolution had gone too far, & did not desire it to pass the Senate.
Four two immediate predecessors in office - and the late attorney Genl., having given deliberate opinion, in favor of commutation - the almost unanimous opinion of the V. Bar, the avowed change of opinion by Mr. Phelps and others in the U. S. Sente, and the general opinion of the Bar - all in favor of that construction of the (Act War, I hope will be regarded by you, as affording at least doubt enough on your mind, before rejecting the claim of Holmes, to allow him, the benefit of the most scrutinizing investigation of the highest law office of the Govt.
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The next leading question of investigation, in the Brief is whether Holmes case is provided for - in either of the Sections of the act of 5th July.
I have endeavored to treat the whole subject, with entire candor. their no hesitation in paying, my opinion is, that neither the 1st nor 2nd Sections was intended to cover this case so far as it is yet unpaid. I referred to it, in my former argument, as a known commutation case, which had been paid under the 1st sect. as being on account of the Half pay (illegible).
I think it does come within the spirit & meaning of the 3rd Sect. of the Bill - which is referring to the cases "not hereto fore paid or prosecuted to Judgements" meant precisely the same as if the words had been "not provided for in the two preceding section" - a very strict literal interpretation, would be sticking to the bank. A fair and reasonable one, under the guidance of the general intention & spirit of the act, would certainly include this one, if it be binding on the state of V.
I confess I cannot see a shadow of ground to doubt the liability of that state. No statute of limitations runs - & it stands as a Judgement of yesterday, unless the State can find some good reason why it was not paid. We have not the most remote suspicion that he can find any.
In McClurg - Popes & Andrews cases, Mr. McLane & others continued this section in conformity with the supposed general intention of indemnity, & gave much more strained construction, than it would be to say the words not paid, in reality mean, not paid by the 1st section, "or prosecuted to Judgement" as in the cases provided for by the second section. The act meant to cover all the cases of officers claims against V. of the several (illegible) mentioned.
Not having got through with the Brief, I must defer further comment in reply, for another communication.
I am y. obt servt. Thomas Green
Page 281

Mch '50

No. 2
Record Evidence of service
as Pay Master & Clothier. also
of the time of being taken prisoner.

E.
Page 282

Richmond Virginia 12th September 1781
Lieut. Paymaster & Clothier  Isaac Holmes.
A declarant on Acc't as p Resol of Assembly £9200.0.0

Leuit. [sic] Isaac Holmes-
Rec'd of him the Bal of Money formerly
advanced him as pay master to the
2nd State Regiment £2266.0.0

The foregoing entries are truly copied from 
Journal commencing 17th Jan'y 1781 and ending 26th December 1783.  Page 203.

Given under my hand at the Auditors Office
Richmond this 18th day of March 1850.
Ro Johnston
First Auditor

It appears by a List of Officers & Soldiers who were prisoners of War, That Isaac Holmes Lieut.2nd State was taken prisoner on the 10th May 1781 by Arnold. He was afterwards paroled by Arnold.

Given under my hand at the Auditors Office 
Richmond this 18th day of March 1859.
Ro Johnston
First Auditor
Page 283

At a District Court held at the Capitol in the City of Richmond on the first day of September 1794 Vivion Brooking administrator of Isaac Holmes deceased late a lieutenant and paymaster in the second Virginia State Regiment. Appellant against upon an
The Commonwealth.

Upon an appeal from a decision of the Auditor of public accounts. A copy of the Judgment of the Court of Appeals in this cause was produced & read to the Court in these words to wit:
Virginia, to wit: at a Court of Appeals held at the Capitol in the City of Richmond the 24th day of April 1794.
The Commonwealth.
Vivion Brooking administrator of Isaac Holmes
deceased late a lieutenant and paymaster in 
the second Virginia State regiment - Appellee
Upon an appeal from a Judgement of the District Court held in Richmond the twelfth day of September 1793, whereby it was considered
that the Auditor of Public Accounts should
issue to the appellee certificates for five years
full pay in commutation for half pay during life bearing an interest at the rate of six per centum per annum from the 22nd day of April 1783, the day on which the troops raised for the late war were discharged in this State
"This day came as well the attorney General for the Commonwealth as the Appellee by his counsel, and the Court having maturely considered the transcript of the record of the Judgment aforesaid is of opinion that there
is no error in the said Judgment. Therefore it is considered that the same be affirmed. Which is ordered to be certified to the said District Court.
A Copy
Teste
J. Brown C.C.
In
Page 284

In pursuance whereof it is considered by the Court that the Judgment aforesaid of this Court be affirmed.

I, John Robinson, Clerk of the Circuit Superior Court of Law and Chancery for the County of Henrico and the City of Richmond, on The common law side, having in my possession and under my care the records and papers of the former common law District Court held in the said City, do certify that the preceding is a true copy from the records of the said District Court.
In testimony whereof I hereto set my hand and (illegible) the seal of the said Circuit Superior Court first above mentioned this 20th day of March 1850.

J. Robinson
Page 285

DOC. NO. 2,
Filed with the Petition of Isaac H. Smith, administrator of Isaac Holmes deceased.

VIRGINIA, To wit:
At a Court of Appeals held at the Capitol in the City of Richmond, the 24th day of April 1794:
The Commonwealth,
Against
Vivion Brooking, administrator of Isaac Holmes, late a Lieutenant and Paymaster in the Second Virginia State Regiment, 
Appellee.
Upon an appeal from a judgment of the District Court held in Richmond the 12th day of September 1793, whereby it was considered that the Auditor of Public Accounts should issue to the appellee certificates for five years' full pay, in commutation for half pay during life, bearing an interest at the rate of six per centum per annum from the twenty-second day of April 1783, the day on which the troops raised for the late war were discharged in this state:
This day came as well the Attorney General for the Commonwealth as the appellee, by his counsel; and the Court having maturely considered the transcript of the record of the judgment aforesaid, is of opinion that there is no error in the said judgment. Therefore it is considered that the same by affirmed. Which is ordered to be certified to the said District Court.

A copy - Teste,
J. BROWN, C. C. A.

Pay of lieut. of infy. pr. month, 
£8 00 00
8
12
___
96
5
Amt. cert. 480 five yrs.' full pay.
96
___
576 ann'l int.
10 yrs.
____
5760
288 } 8 mos.
96
_____
6144
12  8 dys.
-----
6156
----------
307 16 0

The claim to comm. on the additional pay as a paymaster is suspended for the present.

Rec.d wts. and certs. for the above
VIVION BROOKING,
Adm'r of Isaac Holmes.

I hereby certify the foregoing to be a true copy of a voucher on file in this office. 
Given under my hand in the Auditor's Office, Richmond, Virginia, this thirteenth day of March 1851.

RO. JOHNSTON, First Auditor

I hereby certify that it appears from a voucher on file in this office, that on the 13 May 1791, a settlement was made in the name of Winsor Brown, late Captain and Paymaster, and certificates issued for £1260 for five years' full pay, and warrants for £581.1.4 interest thereon.
Given under my hand, in the Auditor's Office, Richmond, Virginia, this 13 March 1851.

RO. JOHNSTON, First Auditor

I. St. G. Tucker, Clerk of the House of Delegates of Virginia, do hereby certify that the foregoing is a true copy of Doc. No. 2, filed with petition on Isacc Holmes Smith, administrator of Isaac Holmes deceased.

Given under my hand this 15th March 1858.

St. G. Tucker, Clerk of the H.D.
Page 286

List of Va Paymaster
at [illegible] from
14th March to 18th Aug't 1849
and from 12th March to
18th Dec 1850

Claim of I. Holmes [illegible]
[illegible[ genl McCalla the [illegible] of
Feby 1850

Lieut Isaac Holmes
Case
left by Genl McCalla
Octo 15/52
Page 287

John Watlington   |   Capt. S'd Artillery   |   March 14th. 1849   |   ___   |   $6,160 | __
John M. Galt         |   Surgeon                  |   "    29th        "        |   ___   |   10,996 | 39
Churchill Gibbs     |  Lt. 1st. Regt.             |   "      "            "        |   ___   |    7,981 | 53
Robert Boush       |   Ensign                     |  April 11th       "       |   ___   |    1,423 | 98 
Charles Dabney    |   Lt. Col. Com'dt       |     "       "          "       |   ___    |  10,216 | 76
George Rogers Clarke  |  General  |  May  23d  "   |   ___   |   7,946 | 68
Abner Crump  |  Capt. Troops  |  "  28th  "  |  ___   |  969 | 32
Isaac Browning  |  Lieut.  |  June 2nd  "  |   ___   |  2,308 | 82
John Reynolds  |  Surgeon Navy  |  " 26th  "  |   ___   |  6,528 | 50
Charles Jones  |  Lieut. Navy  |  July 28th  "  |   ___   |  4,872 | 00
Bernard Glenn  |  Capt. Troops  |  Augt.  8th  "  |   ___   |  3,969 | 09
Henry Daring or Dearing | Lt.  |  "  "  "  |   ___   |   947 | 18
Hugh McGavock | Qr. Master  |  March 12th 1850 | Half pay @ $78 pr annum |  4,857 | 58
Robert Boush  |  Pay Master |  "  15th  "  |  " " " $15 p mo.  |  4,776 | 25
Stephen Turnbull  |  Cap. Artillery  |  "  27th  "  | 5 years full pay & Intst. | 9,823 | 24
Samuel Barron | Lieut. Navy |  "  21st  "  |  " " " " " |   1,083 | 77
Samuel Cary  |  Adjutant |  "  22nd  "  | Half pay @ $6.50 pr mo.  |  1,930 | 00
Granville Smith | Ensign & Qr. M. |  "  "  " | " " " " " " | 2,546 | 20
James Markham  |  Cap. Navy  |  "  23rd  "  |  5 yrs. full pay & interest  |  2, 809 |  06
Philip Bartlett  |  Surgn.  " |  " 29th  "  | " " " " " " | 4,374 | 80
William Slaughter | Lt. Dabney's Legion | April 26th " | Half pay  |  2,359 | 86
Peter Moore  |  Adjutant  |  May 2d " | " " @ $78 p annum |  2,846 | 89
Thomas Marshall | Pay Master |  "  3d  " | " " @ $150 " " | 6,312 | 82
Henry Vowles | Adjutant | June 11th " | " " @ $96 " " | 2,104 | 11
Wm Armistead | Paymaster | " 26th " | "  " @ $180 " " | 7,352 | 38
Henry Quarles | Capt. Artily | July 22d " | " " $ 300 " " | 8,586 | 57
Thomas Bressie | Capt. S. Troops | " 25th " | " " @ $200 " " | 4,947 | 95
Edward Valentine | Cap. Artily. | Nov 29 " | " " @ $300 " " | 3,952 | 60
Samuel B Green | Lieut S. Troops | " 29 " | " " heretofore paid as Lieut. | 1,336 | 44
William Skinner | Capt. Navy | Decr. 18th " | Half pay @ 250.93 p annum | 6,170 | 13
[marked out]
Page 288

Extract from the records
of Va showing that
one years half-pay
was paid to Lt. Isaac
Holmes in 1783
Page 289

Richmond Virginia 22 Nov 1783

Army
2 Warrants to Isaac Holmes for one years half pay as a lieut of Infy in the State line to the last of December 1782 agreeable to an act of assembly directing the Auditors to issue Warrants in certain cases £10 s. 38 d  48_0_0

This is to certify that the foregoing is truly extracted from the specie Journal of this office, for November 1783. Given under my hand in the Auditors office this 6th April 1853
Ro Johnston
Aud'r of Pub Accts

R. M Heath Esq'r
Dear Sir
My Engagements to pay, prevent my doing more than to send the enclosed papers
Very Respy yrs
Joseph Jackson
Page 290

Isaac Holmes
(Half Pay), 
(Copy)
Argument of
K. Pritchett
against the claim.
Page 291

act, not general in its characters, and how dangerous it was deemed by Congress, since a subsequent interpretation of the meaning of this act by the House of Representatives rejected the previous interpretation, though made by the legal advisor of the Executive, and adopted by the Departments to whom its execution was entrusted.

Notwithstanding the great learning ability, and ingenuity, with which this claim is urged, the obligation of the United States to pay commutation for Virginia half-pay claims, in any case, or either commutation or half-pay, in this case, does not appear to be made out.

All of which, with great deference is most respectfully submitted.

K Pritchette
Clk.
Page 292

Comwlth
v
Homes's adm'r

copy of judg't of court
of appelas.
Page 293

Virginia to 

At a Court of Appeals held at the Capitol in the City of Richmond the 24th day of April 1794.

The Commonwealth
against
Vivion Brooking, administrator of Isaac Holmes
late a Lieutenant and paymaster in the second Virginia State Regiment
Appellee

Upon an appeal from a judgment of the District Court held in Richmond, the 12th day of September 1793 whereby it was considered that the Auditor of Public accounts should issue to the Appellee certificates for five years of full pay in commutation for half pay during life bearing an interest at the rate of six centum per annum from the twenty second day of April 1783 the day on which the troops raised for the late war were discharged in this State.

This day came as well the Attorney General for the Commonwealth as the Appellee by his Counsel, and the Court having maturely considered the transcript of the record of the Judgment aforesaid is of opinion that there is no error in the said Judgment. Therefore, It is considered that the sum be affirmed.

Which is ordered to be certified to the said District County.

A copy - Teste,

J. Brown, C. C. A.

I do certify that the foregoing is a true copy of a paper filed in this office. Given under my hand at the Auditor's office of Virginia this 23 July 1832.

Jas E. Heath, Aud. of V.
Page 294

(BLANK PAGE)
Page 295

VIRGINIA:
At a Court of Appeals held at the Capitol in the City of Richmond, on Thursday, April 22" 1794:
The Commonwealth,
Against
Vivion Brooking, administrator of Isaac Holmes, late a Lieutenant and Paymaster in the Second Virginia State Regiment,
Appellee.
Upon an appeal from a judgment of the District Court held in Richmond the 12th day of September 1793, whereby it was considered that the Auditor of Public Accounts should issue to the appellee certificates for five years' full pay, in commutation for half pay during life, bearing an interest at the rate of six per centum per annum from the twenty-second day of April 1783, the day on which the troops raised for the late war were discharged in this state:
This day came as well the Attorney General for the Commonwealth, as the appellee, by his counsel, and the Court having maturely considered the transcript of the record of the judgment aforesaid, is of opinion that there is no error in the said judgment.; therefore it is considered that the same by affirmed. Which is ordered to be certified to the said District Court.

A copy - Teste,
Mars T. Starke, Clk
Page 296

000
In the matter of
Isaac Holmes dec'd
Claim for Commutation
and interes [sic] thereon,
as Paymaster, in the
2nd: Regiment of the
Virginia State Line
(under Act July 5, 1832)

W Pritchett
with regard of
[[illegible]
Page 297

In the matter of Isaac Holmes
Claim for commutation & interest due as Paymaster and 2nd Regt. Va. State Line, under Act July 5 1832

The petition of Isaac Holmes, filed in 1791, in the District Court of Virginia, sets forth; that he entered the service of that State in 1776, with the rank of Lieutenant, in the 2nd State Regiment, then commanded by Col. Wm. Brent, and continued therein, until he was captured by the British in May 1781; that on the 25th May of 1781, being then a Lieutenant & paymaster, he was liberated on parole, that while a prisoner on parole, by some arrangement, respecting his regiment, he became a supernumery [sic], but remained a prisoner in parole, until the conclusion of the war, and of course, in the service of his country until its close: and therefore, entitled to half pay under the Act of Assembly of May 1779, as a commutation, of 5 years full pay, in lieu thereof: that this had been refused him, and therefore he appeals to the Court.

Early in the year 1793 (it is said, March
Page 298

2

20th 1793) the petitioner died, and on the 12th September 1793, Vivion Brookling, administrator of Isaac Holmes, late a lieutenant and paymaster in the 2nd Virginia State Regiment, obtained a reversal of the decision of the Auditor of Public Accounts, upon the appeal, as above set forth, in the above recited petition of Isaac Holmes, by the District Court of Va. to the effect "that the appellant is entitled to five years full pay in commutation for half pay for life," and that the Auditor of Public Accounts issue to appellant, certificates for the said five years full pay, bearing an interest at the rate of six per centum per annum, from the 22nd day of April 1783, the day on which the troops raised for the late war were discharged in this state.

From the above judgment, the Attorney General, on behalf of the Commonwealth, (illegible) an appeal to the next Court of Appeals, which was allowed.
Page 299

3
On the 24th of April 1794, the Court of Appeals at  Richmond, affirmed the decision of the District Court, as above recited, and ordered as judgment to be certified to said District Court.

On the 1st September, 1794, a Copy of the judment [sic] of the Court of Appeals, was produced, and read to the Court, to wit, a District Court, held at the Capitol, in the City of Richmond.

On the 10th day of July 1794, in obedience to the said judgment, Vivion Brooking, Admr. of Isaac Holmes, received from the Auditor of the State of  Virginia, warrants and Certificates, for the sum of £787.16.0, being the amount of commutation of five years full pay, with interest thereon, of a Lieutenant, the rank of Isaac Holmes in the line.
Page 300

4
4
There is no evidence, that any further claim was made in the Courts of Virginia or to her accounting officers, by the heirs or representatives of Isaac Holmes since the above stated payment on the judgment, on the 10th of July 1794.
On the 14th of February 1850, as appears from the letter of John McCalla, dated June 24. 1850, he, as the Attorney for the Heirs of Isaac Holmes, filed in the Pension Office, their claim for the first time, for commutation and interest
for the services of Isaac Holmes, as paymaster, under the act of July 5, 1832.
The claim as presented, is for Commutation and interest, as a supernumerary for staff rank, under a judgment of the Supreme Court of Virginia, payment of which has been assumed,
(as alleged), under the provisions of the Act of Congress of July 5th 1832
Page 301

5
5
To a clear understanding of the question, the several propositions, involved in this statement of the case must be examined seriatim.
1st: upon what grounds is commutation claimed under the act of July 5, 1832. There can be no reasonable doubt that Isaac Holmes, was a Lieutenant and Paymaster, in the Second
Virginia State Regiment that he became a Supernumerary Lieutenant, by the reduction of the State Regiments of that State, under the Resolution of her assembly of October 1780, which was carried into effect, February 5th 1781; and further, that he was taken prisoner, on the 10th of May 1781, and remained such, until the end of the war. 
The Act of Assembly of Virginia of May 1779, [Henning's Stat. [Statutes] at Large p. 8, 25] provides that all general officers
Page 302

6
6
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 defense of this State, or for the defense of the United States &c. provided Congress do not make tantamount provision for them, who shall serve henceforward or from the time of their being commissioned,
to 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.
In October 1780, Virginia provided,
Page 303

7
7
by act of Assembly [Henning Stat. at Large Vol 10 pg. 374] that the officers of this State in
Continental service, who shall continue therein
to the end of the present war, shall receive half pay during life or until they shall be again called in to service
The First Virginia Regiment was by Act of Assembly of 1777, transferred from the State to the Continental service, and accepted by Congress.
The Second Regiment by a Resolve of May 24, 1780 was recommended to Congress, with the first, for commission in the Continental line, and on the 1st December 1780, a Resolution
was adopted, that the Commander in-chief, Genl Washington, be requested to settle the rank of the officers of the 1st and 2nd Regiments, which had been attached to the Continental army, and if entitled to Commissions, to recommend them to Congress, for that purpose, and that the Governor transmit
Page 304

8
to General Washington this resolve.
On the 1st of January 1781, the Assembly resolved that the Governor and Council be desired to discontinue for the present, from actual service, such of the said Officers, as are supernumerary to the men composing the several regiments or corps on State establishment
Under an Act of Assembly of Virginia of November 1781, a return was made to her Executive, by a Board of Field Officers, as a guide to the Auditors in issuing Warrants to officers for half pay; upon which return appears the name of "Isaac Holmes" "1st Lieut"
"Supernumerary" "Amt of half pay" "L 48" .
Accordingly on the 22d November 1783, Isaac Holmes received one years half pay as Lieutenant of Infantry in the State Line.
There is no evidence of any subsequent payment to him, or to his representatives
until the judgment of
Page 305

9.
the Supreme Court of Appeals was obtained
by his Administrator, and this is explained by the fact, that on the 22 December 1783, all such payments, were suspended by a joint
Resolution of the Assembly of Virginia which
was revoked by the Act of 1790.
Hence, it appears, that the Officers of the Second Regiment were not received into, nor commissioned in the Continental army, though actually engaged in that service.
Political justice, must admit them to be so considered, but this case is a purely legal one, and Holmes cannot be considered as an Officer of the Continental line.
A question however arose in the settlement with the supernumeraries, under the above recited act of 1779, and the Auditor reversing to allow half pay or grant
Page 306

10
10
or grant certificates on such claims, suits were instituted under an act of Virginia, of October 1778, allowing herself to be impleaded in her own Court, and the refusal of the Auditor sustained by the Supreme Court of Appeals
without prejudice on fuller proof.
As a consequence of these decisions, the Commonwealth, not deeming herself bound for these claims, omitted in the adjustment of her accounts with the United States, under the Act of Congress of August 5th 1790, to present them as an item to the Commissioners appointed to settle the accounts between the
United States and the individual States. Subsequently, however, the decision of the Supreme Court of Appeals was reversed, and judgments obtained for claims of this character.
On the 16th of December, 1790,
Page 307

11
11
Virginia had passed an act, which declared, 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.
Under this act, it was, that her Court decided, that her officers were entitled to commutation, in lieu of half pay for life. The judgment, therefore, obtained by the Administrator of Holmes, was for commutation and interest under this interpretation of the act of 1790; 
Holmes, having been made prisoner while a supernumerary and after the supernumerary act had gone into effect, being doubtless, justly deemed constructively, "in actual service to the end of the war.
If however, the principle stated in the report of Mr Underwood of Kentucky made to the H. R. US. [Vol 4 Report of Committees 1837.8] that "Virginia had no right to enlarge her liabilities for revolutionary
Page 308

12
services, after the General Government had assumed the revolutionary debts of the several States, (which was done prior to the passage of the Virginia act of 1790), is sound, then claims
for commutation against the United States, are barred by the restriction contained in the third Section of the Act of Congress of 1790, which says, nor shall the claim of any city in 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. It being declared, also, by
the 1st Section of the same act, that the determination, of the Majority of the Commissioners, created thereby, on all claims
submitted to them, shall be final and conclusive
2nd Is he entitled as a supernumerary for his staff rank
12.
Page 309

13
Supernumeraries, subsequent to the passage of the act of Virginia, of 1790, by the decision of her tribunals, seem to have been put upon the same footing as those in service, as to half pay. But there is no evidence, that any officer, previous to the act of 1832, who was not in actual service at the time he became a supernumerary, was recognized as entitled to half pay or commutation, for his staff-rank
The four cases, which the list of payments,
made by the auditors of Virginia, shews the
officers therein named, to have received
commutation, previous to the act of 1832, for
both linear and staff rank, were cases of officers in actual service to the close of the war. These cases, therefore, cannot be claimed as precedents, for the allowance of this claim. for where is the evidence, that any officer, previous to the Act of 1832, who was not in actual service, at the time he became a supernumerary was recognized as entitled to half pay or commutation for his staff rank?
Page 310

14 
The Resolution of the Assembly of Va of Oct 1780, went into effect in February 1781, and Holmes was taken prisoner the 10th May 1781, so that he was taken prisoner while a supernumerary Lieutenant, and actually held no staff rank; at the time of his capture, not being in service, and evidently, only considered
himself entitled to his linear rank, under his commission as Lieutenant, since he so designated himself in his parole, a Copy of which is appended to his petition Nor is it possible that at the time of his capture, he could have been in actual service, or  constructively so, as a supernumerary paymaster, for the reason, that on the 22d December 1779, by a resolve of her General Assembly, Virginia dismissed such staff officers, as were not immediately necessary - On May the 1st 1780, only thirty one, rank and file of the Second Regiment remained for the war a year after which, to wit on May 25, *10th 1781, Holmes was taken prisoner while a supernumerary Lieutenant only
Page 311

15
There being no precedents, of payment by Virginia, for constructive supernumerary staff
rank, previous to the Act of 1832, and no recognition of liability, by the United States on behalf of Virginia, for the payment of claims for such supernumerary rank, there seems to be no reason, why the precedent should now be established.
Besides, Holmes Administrator, received his commutation as Lieutenant, and it does not
appear, that his heirs or representatives, during upwards of fifty years after its receipt, ever asserted that the judgment presented as the
basis of this claim, was a judgment, for both his linear and staff rank.
3rd. We come now, to the judgment of the Supreme Court of Appeals of
Page 312

6
Virginia, which is presented as the basis of this claim
What is this judgment, as certified to the Auditor of Public Accounts of Virginia?
The case, is entitled, "Vivion Brooking, administrator of Isaac Holmes, late a Lieutenant and Paymaster in the Second Virginia State Regiment: Appellee - upon an
appeal, from a Judgment of the District Court,
held at Richmond, the 12 day of September 1793, whereby it was considered, that the Auditor of Public Accounts, should issue to the appellee, Certificates, for five years full pay, in commutation for half pay during life, bearing an interest, at the rate of six per centum per
annum, from the twenty second day of April
1783, the day on which the troops raised for the late war, were discharged in this State
the Court, is of opinion, that there is no error in the said Judgment. Therefore it is considered that the same be affirmed
Which is ordered to be certified
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17
to the said District Court.
"A copy" "Teste"
J Brown C.C.A.

"pay of Lieut. of infy p month L 8" -

What was the interpretation, by the Auditor of this judgment? Commutation for half pay with interest, for the lineal rank of Isaac Holmes, as Lieutenant, which was paid to his administrator
accordingly, receipted for by him, and acquiesced in, from that time, in 1794, until the presentation of this claim, in 1850.
Reliance is had, that the question was raised at the time, as to the requirements of the judgment, from an endorsement made by the Auditor upon the transcript of the judgment, on file in his office, in these words:
"The claim to comn. [commutation] on the addl. pay as a paymaster is suspended for the present."
But there appears on the face of the transcript of the judgment itself, a memorandum, which is above
17
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18
the signature of the attesting clerk of the Court of Appeals, and as it stands, would appear, a part of the judgment of the Court, to wit: "pay of Lieut of infy p month £8."
At any rate, there is nothing in the language of the judgment, making in obligatory on the Auditor to pay Commutation for both ranks, or it would doubtless have need enforced, and if it was so considered, there is no apparent reason why its payment was not enforced.
Finally - Did the United States assume the payment of this claim, by the provision of the Act of July 5, 1832?
As above stated, the claims of Supernumeraries were, for a time, successfully resisted in the Courts by Virginia, and at the time of her settlement with the United States, were not considered by her, to be amongst her obligations, incurred during the War, for the Common defense, and
18
Page 315

19
therefore, were omitted in the estimate of her liabilities. The subsequent reversal of the judgments on which she had relied, threw upon her the payment of a large mass of claims of this character, and on the 8th of April, 1831, she passed an act, authorizing the Governor to appoint a Commissioner, "on behalf of the Commonwealth," to prepare the testimony and documents touching the claims of Virginia on the  United States, on account of moneys paid or for which Virginia may be liable to the officers and soldiers of her State lie, during the Revolution, their heirs executors administrators and assigns," and "to attend personally to the prosecution of such claim or claims under the direction of the Governor" &c.
In pursuance of this Act, Thomas W. Gilmer, was appointed a Commissioner in the part of the State of Virginia, to prosecute these claims against the United States, and in accordance with his duties, presented a Memorial
19
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20
to Congress (Rept HR 1831 No 191)
In this memorial, it is argued, "that these supernumery [sic] claims, are debts which were contracted by Virginia in prosecuting the war of the revolution - and that as such, they would have been unquestionable charges against the United States, on the former settlement of accounts, had they been paid or assumed by the State."
That, "with the exception of a few cases, it is the principal only of these half pay claims, which you are asked to refund to Virginia, as no interest was allowed on the claims which had been adjudicated by the courts.  The State of Virginia never commuted the half pay of her officers, as was done by Congress, in regard to the half-pay of the continental officers.  It was not competent for her to do so, without the consent of the contracting parties; and the officers of the State line, never petitioned for commutation, as those of the Continental line did.  In some few cases, the commutation., has been voluntarily
20
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20
accepted by the officers of the Virginia State line, but the Courts have, uniformly, rendered judgments for half-pay during the life of the officer, when it has been demanded."
The memorial concludes, by asking "that all sums of money which the State of Virginia has paid since the passage of the Act of Congress of August 5, 1790," to officers of her State line or of the Continental line, on account of her engagements during the Revolution, may be refunded to the Commonwealth that all sums for which the Commonwealth may still be bound, on the same account, may be assumed or adequately provided for, by the United States, so as to exempt Virginia from a responsibility, which does not properly belong to her" &c.
In a communication by the Commissioner of the State of Virginia, addressed to the chairman of the Select Committee of the House of Representatives, (to whom was referred his memorial) it is
21
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21
re-iterated, "The State of Virginia never commuted the half pay claims of her officers."
The Chairman of this select committee, the Hon. Mr. Barbour, of Virginia, in the Report to the House, recited the class of claims for which Virginia asks to be indemnified - recapitulates the action of that State - recites the Act of May 1779 giving half-pay during life to certain officers, including supernumerary - states the liability incurred by Virginia under that Act, as decided by her highest tribunals - and says if the remuneration now demanded in the half-pay for life, be for common service, rendered to all, it should be paid by joint contribution, or rather from the common treasury."
His Report thus concludes, "Your committee believe, that the United States should reimburse Virginia, whatever sum of money the State may have paid to her officers of the regiments and corps herein mentioned. Provision should be made
22
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22
by law, to pay and acquit the judgments already rendered against Virginia in her courts, for and in behalf the officers or their legal representatives, for and on account of the half pay promised for life by that State in 1779 (not 1790) that in like cases, where no judgments have been obtained, nor suits instituted, that payments should be provided for by the United States, and the future half pay, accruing, and hereafter payable, should likewise be provided for, by this Government."
For the purpose of carrying out the views of the Committee, they report a Bill"
This Bill, passed into the law of July 5th 1832,
Throughout the whole of these proceedings on the part of Virginia- the memorial of her Commissioners - his communication to the chairman of the committee - the report of the Committee, who framed the Bill - and in the Act itself there is not one syllable of a claim
23
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23
for indemnification, or for commutation, asserted to be binding on the United States, under the Act of Assembly of Virginia of 1790.  It is for half-pay, under the act of 1779, throughout.  The act under which she had successfully resisted commutation, and triumphantly maintained that resistance, until after the passage of her Act of 1790, which placed  a particular class of her officers, on the same footing as those of the Continental line. A sedulous avoidance, in the act itself, of such an assumption, is manifest, and in accordance with the declaration of Virginia herself, through her Commissioners, expressly denying that she had ever commuted her half pay to her officers, and of course, excluding it, from her demands upon Congress.
The argument that Virginia did, previously, allow commutation in several cases, and that the judgments in those cases were a part of the claim paid to her by the Act of 1832, does not avail, as a recognition of Commutation claims, against the United
24
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24
States, since she expressly excludes the principle in her request, confining it to her obligations under the Act of 1779, and the Act was framed accordingly.
Much less can it be claimed, as a recognition of this claim or Holmes, for Virginia, successfully resisted through all her Courts, the allowance of commutation, where the claimant was not in actual service to the end of the War, or not taken prisoner while in actual service.  His claim was probably allowed, in conformity with his petition, as a Lieutenant, constructively in actual service, at the time of his capture.  By what sophistry, can Holmes be reasoned into the position, of construction actual service, as a staff officer? The assembly of Virginia, by Resolution of Dec'r 22d, 1779, directed the dismissal of the several officers of the Staff department, as shall not appear to be immediately necessary, - in April and May 1780, about 280 of the remains of the Second State Reg't
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was discharged, and at that date, those remained for the War 31 al told. How then, could Holmes have been in actual service, as paymaster, on the 25th of May 1781, when taken prisoner; and if not in actual service, as such, at that period, where is the precedent in the decisions of Virginia, for his payment for commutation?  And if Virginia is not bound, how can the United States be, under the act of 1832?
Here then, is a demand, not asked for, nor claimed by Virginia, at the passage of that act, and which if prosecuted to judgment in her own Courts, as alleged, has bee paid, by the presumption of her act of limitations or if not paid, excluded by the terms of the act itself.  If due therefore, it must be paid by Virginia, and not by the United States.
Besides, it has been decided by the Department, that rank follows the Commission. The only commissioned rank
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which Holmes held, was that of Lieutenant staff rank, is incidental to actual service, and begins and ends with such service.
It is believed, that no precedent can be found, of the payment of a staff officer not in actual service, at the time he became a supernumerary under the Resolves of the Assembly of Virginia, for his staff rank.
Such appears to have been the view  taken by the United States of the Act of 1832, as appears from the decisions of the Departments -acquiesced in by the claimants, and by the State of Virginia, and never disturbed, as a principle, until the year 1849.

The Provision of the Act of 1832, are now to be considered, with reference to this Case.
It is provided in Section 1. "That the proper accounting officers of the Treasury, do liquidate and pay
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'the accounts of the Commonwealth of Virginia, against the United States, for payments to the officers commanding in the Virginia line, in the war of the Revolution, on account of the half pay for life, promised the  officers aforesaid, by that Commonwealth, the sum of one hundred and thirty nine thousand, five hundred and forty three dollars, and sixty six cents."
"Section 2." That the Secretary of the Treasury be, and he is hereby required and directed to pay to the State of Virginia, the amount of the judgments which have been rendered against the said State, for and on account of the promise, contained in an act passed by the General Assembly of the State of Virginia, in the Month of May Anno Domini 1779, and in favor of the officers or representatives of officers, of the regiments and corps herein after recited, and not exceeding in the whole the sum of $241,345. To wit: First To the officers, or their legal representatives, of the Regiment commanded by the late Colonel George Gibson to
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"Second. To the officers of their legal representatives, of the regiment denominated the second State Regiment, commanded at times, by Colonels Brent and Dabney, the amount of the judgments which they have obtained, and which are now unsatisfied."
Isaac Holmes was in this Regiment, specifically provided for in class "Second." The amount of the judgments which the officers of this Second Regiment had obtained, were included in the sum specifically appropriated for such purpose, and paid from the Treasury of the United States to the State of Virginia.
The claim of Isaac Holmes, had been "Prosecuted to judgments'" and the sum of £787.16 admitted to have been paid, in satisfaction of his judgment, and received by Virginia.  It is assumed, that his judgment was only satisfied in part. It so, it is the fault of Virginia, who received $241,345, from the United States, to pay this very class of judgments, which had bee obtaining
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against her, "and which remained unsatisfied." 
If due at all, in equity, it is due to the State of Virginia, by reason of her omission of it, in her estimate of the obligations for which she claims indemnity, and until so claimed by Virginia, it is no claim against the United States, it having been expressly provided for in the sum paid to Virginia, and as expressly excluded, as a claim against the United States by the very terms of the act of 1832.
But it is urged, that the 3d Section of that act, provides for its payment by the United States, the judgment not having been fully paid, as one of those cases therein provided for, "for which said State, (Virginia) would be bound on the principles of the half pay cases, already decided in the Supreme Court of Appeals, of said State."
It would be a sufficient answer, to say - that where a Statute makes a specific provision, for a claim, (or class of claims,) it is thereby excluded from the operation of the general provisions of
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the Act. But as Virginia never commuted her supernumerary half pay claims - always refused commutation upon them - and her courts always sustained her in that refusal, under the act of 1779 - and cases, within the principle of the half-pay cases, are alone provided for by this 3d Section, the claim of Holmes, being for commutation, cannot be within the purview of this Section of the Act. Neither, can he claim half pay upon his judgment, that being for commutation, which is not recognized as an open claim against the United States on the behalf of Virginia, and he having made his election of Commutation, in lieu of half pay, is bound by his choice, and cannot alter his claim, to a claim for half pay, under that judgment.
Full justice to the claimant, demands a consideration of the arguments, of the ablest of his counsel, whose brief embodies all the main arguments upon
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which he relies.
The first point made, is that a Judgment was obtained by the Administrator of Holmes, in the Supreme Court of Appeals of Virginia, for commutation and interest, due him, both as Lieutenant and Paymaster - that he was paid for this services as Lieutenant, upon that judgment, but that payment was suspended upon the additional pay, as Paymaster, by the Auditor in 1794 "for the present", & which has never been paid.
The answer to this, is, that the presumption, to be drawn from the face of the judgment - the Action of the Auditor - and the acquiescence of the parties, for upwards of half a century, is against the assumption that it is a judgment for Commutation as well for Paymaster, as Lieutenant, especially as commutation for supernumerary service, has always been denied by Virginia, and by her Courts, and
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it has been conclusively shown that Holmes was not in actual service, as paymaster, when made prisoner, and therefore not constructively so, during his parole, to the end of the War.
If he cannot recover his claim as against Virginia, how can it be claimed as against the United States? If Virginia, is not bound under the principles of her half pay cases, how is the United States bound?  If barred in Virginia, is it not equally barred as against the United States?
The judgment as understood by Virginia, was presented to the United States, as paid, admitted by the United States, and repaid to Virginia.
Can the United States go behind the report of the Commissioners made to the Executive of Virginia in 1782 - the payment to Holmes for his rank, as set forth in that report - the presentation of this very claim as paid by Virginia, and re-claimed
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as a portion of her claim against the United States in 1832, and subsequently, paid to her, and assume a gross injustice on the part of Virginia, which is to be redressed under this Act?
It is further contended, that the Act of 1790, which declared, "That the same compensation 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 officers of the Continental line," was so construed by the Court of Virginia, as to give Commutation, inasmuch as commutation was the compensation for half pay, which was allowed the continental line, under the Resolves of Congress - true, and on this principle of actual service, by construction, Holmes obtained his judgment, and was paid thereon, as Lieutenant. The Courts never established by these decisions, the principle, that a supernumerary staff officer, not
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in actual service, when he became a supernumerary, was entitled to commutation. He was not in actual service when taken prisoner, and hence could not have been constructively so, by any decision relied on.
The precedents suggested of the payments of half-pay, under the several decisions of the Court of Appeals of Virginia, in April 1839, are not applicable to a claim for commutation, which was never allowed, by any decision, to supernumeries.
The Argument drawn from the fact, that a number of cases, reported as paid by Virginia, and repaid to her under the Act of 1832, were commutation cases, - though the words of the Act are for payments made by Virginia "on account of half-pay for life, promised her officers" - and therefore, commutation, and half-pay for life were intended by the framers of the act, as convertible terms, is not sound.
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The reverse idea, is the natural conclusion.  Virginia asked to be indemnified for what she had paid - she denied in her memorial ever having commuted the half pay of her officers; and the bill was evidently framed to correspond with this declared principle, upon which future claims against the United States under the Act, were to be determined, to wit: the principles of her act of 1779. What she had been compelled to pay, she stated and for this she asked to be indemnified, whether paid by her in account of Commutation or half pay- but denied, that she had ever recognized commutation as a principle - insisted that such was not her contract, which contract, could not be varied from the half pay principle, without the consent of the contracting parties - a few had consented, and she had paid them - for these, she asked to be repaid - but sedulously, avoided committing herself, or the United States, to a recognition of
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the principle of commutation, and upon this mutual understanding of what was asked, and what was accorded, the bill was framed, and became a law, recognizing the half pay principle, of 1779, alone.
The decisions of the Courts of Virginia, under her act of 1779, can therefore, alone be quoted as precedents of the sense of her tribunals upon the question of commutation; subsequently to the passage of the Act of 1790, her decisions are not precedents, or guides for interpretation of the Act of Congress of July 5, 1832, as that act, only recognizes the Act of 1779- and all the precedents of Virginia, are against commutation, under that act, and even against supernumerary half pay cases.
Of the Argument, drawn from the Isaac Holmes' case, being one of the 42, included in the 1st Section of the act of 1832, as having received payment in part
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of his judgment for commutation, although it is described as a payment on account of half-pay &c, it is to be remarked, that the allegation, that it is a judgment reported by the Auditor, as a payment in part, is entirely without proof as far as the list of the Auditor, present his claim.
It it is meant by the phraze [sic], and on Mr. Green's argument, "that it is described as a payment on account of half pay- that it is consequently, an admission by the Auditor, that it was not fully paid, the inference is entirely without foundation.  The List, is, of payments made by the Auditor, on account of half pay, and includes, those that were fully paid, without question, and therefore, the term if not applicable to all as evidence of part payment only, could not be applicable to Holmes.
In regard to the argument, that "Isaac Holmes' case is described in the 1st Section, as a half-pay case,  
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and therefore Virginia is bound to pay it, by his previous decisions, upon his judgments only partially satisfied, the question arises, why was it not paid? and a further answer is, as before stated, that the 1st Section of the act of 1832, appropriating a specific sum, to liquidate this claim, among others, against the United States by Virginia, and she was paid for this very claim; and if the argument is good, that the Holmes' Case was provided for in that Section, his resort as against the United States is gone, by the very terms of the act, under which the claim is made.
The action of one branch of Congress in February 1833, relied on, as declaratory of the sense of Congress, of the meaning of the Act of 1832, can be no sound guide in the interpretation of a statute, and therefore, is not necessary to be dwelt upon.
The Act of March 1835, which merely transfers the payment of the Virginia claims, from the Treasury, to the war Department
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is merely a directory act, addressed to those departments, and the use of the words "commutation" therein, proves nothing, as to the meaning of the Act of 1832, - it is not declaratory nor explanatory of its meaning, nor was it intended to affect the subject matter of that act.  No argument is necessary to shew this. The transfer of duties or payment of monies, from one Department to another, has no bearing upon the meaning of the act.
The Argument drawn from the legislation of Congress in 1848, in the payment of certain commutation cases, cannot control the express terms of the Act of 1832.  The general principle is adverse to the Argument.
New, and special legislation, admits the insufficiency of the general law, the presumption therefore, is against the intention of Congress to interpret the act of 1832. The opinion
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of individual members, which induced their votes, is not conclusive of the sense of Congress.  If Congress had so intended, their action would have been expressly declaratory of the meaning of the act of 1832, as covering all like cases. The special act of relief to Virginia is not a general undertaking.
The very argument advanced that the Attorney General of the United States, (by extending the principles of the act of 1832, as interpreted by the Act of 1848, to navy claims of Virginia,) brought about the interposition of Congress (against the action of Mr Ewing,) who reported adversely in the House of Representatives, to his decision, demonstrating how little reliance is to be placed, upon the principle of interpreting a general act, by a subsequent act, not general in its character, and how dangerous it was deemed by Congress, since a subsequent interpretation
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of the meaning of this Act, by the House of Representatives, rejected the previous interpretation, though made by the legal adviser of the Executive, and adopted by the departments, to whom its execution was intrusted [sic].
Notwithstanding the great learning, ability and ingenuity, with which this claim is urged, the obligation of the United States to pay Commutation, or half-pay, in this case, does not appear to be made out.
All of which, with great deference 
is most respectfully submitted
K. Pritchette
Clk.