The Court of Claims disallowed the claim of the administrator
de bonis non of Colonel Francis Taylor, for five years'
full pay to Taylor, as a colonel of infantry, under the resolution
of the Continental Congress of March 22, 1783 (4 Jour.Cong. 178),
holding that he was not in the military service, in the continental
line, to the close of the war of the Revolution in 1783. This Court
affirms the judgment.
Page 137 U. S. 114
Nor was Colonel Taylor entitled to half pay for life under the
resolutions of October 3 and 21, 1780, 3 Jour.Cong. 532, 538,
because he was not a "reduced" officer.
He was not entitled to recover under the provisions of the Act
of Congress of July 5, 1832, 4 Stat. 563.
Under § 906 of the Revised Statutes, the decision of the
Governor of Virginia, made under the Act of that state of March 11,
1834, Laws of 1834, p. 6, p. 22, that Colonel Taylor was a "colonel
in the continental line from October 1, 1775, to the close of the
war," is not either obligatory in law or conclusive as evidence
against the United States.
The Court of Claims did not err in refusing to find that Colonel
Taylor "was an officer in the continental service on the 22d day of
March, 1783, and continued therein as such officer to the end of
the war," whether that was a conclusion of fact or one of law.
The case is stated in the opinion of the Court.
MR. JUSTICE BLATCHFORD delivered the opinion of the Court.
This is an appeal from a judgment of the Court of Claims
dismissing the petition of John G. Williams, administrator
de
bonis non of Francis Taylor, against the United States.
The original petition was filed by George Taylor Jenkins and
others, December 8, 1865. After a traverse and an amended petition,
an answer was filed to the latter, and also a special plea, and the
case was submitted to the court June 10, 1868. On June 15, 1868, a
judgment was rendered dismissing the petition. A motion for a new
trial was made in December, 1868, and granted in December, 1869. An
amended petition was filed in December, 1877, and a traverse
thereto, and in February, 1878, the court ordered that John G.
Williams, as administrator
de bonis non of Francis Taylor,
be substituted as the claimant, and he filed on the 18th of April,
1878, the petition which is now before us. A traverse was filed
thereto, together with a special plea, to which latter there was a
replication. The court entered a judgment on June 7, 1880,
dismissing the petition, and filed certain findings of fact
Page 137 U. S. 115
and conclusions of law, with an opinion, which are set forth in
the report of the case in 15 Ct.Cl. 514. Those findings embrace
identically the findings now before us, to and including finding
10.
On the 7th of September, 1880 at the same term, the claimant
filed a motion for a new trial, on the ground of newly discovered
evidence. This motion was held over until the 14th of March, 1887,
when the court overruled it, giving all opinion, which is reported
in 22 Ct.Cl. 116. It also then substituted new findings of fact and
conclusions of law instead of the original ones, the findings of
fact being the same as the original ones, to and including finding
10, and adding finding 11. On the 16th of May, 1887, it made an
order which vacated and set aside the judgment of June 7, 1880, and
entered a new judgment
nunc pro tunc as of March 14, 1887,
dismissing the petition. The appeal of the claimant is for a review
of this last judgment.
The amended findings of fact, with the conclusions of law
thereon, are as follows:
"1. Francis Taylor was commissioned captain in the second state
regiment of the Virginia forces on continental establishment May 8,
1776. He continued in active service, and was promoted and
commissioned major in said regiment with rank from July 12, 1778,
and he became supernumerary major by the arrangement of the
Continental Army at White Plains in September, 1778."
"2. The regiment, commonly designated as the 'Albemarle Guards,'
was originally authorized by the Resolution 19th December, 1778, of
the House of Delegates of the State of Virginia, but was taken up
on continental establishment, under and by virtue of the resolution
9th January, 1779, 3 Jour.Cong. p. 179. From the 9th January to the
5th March, 1779, Francis Taylor was in command of the regiment as
lieutenant colonel. On March 5, 1779, he was commissioned as
colonel by the Governor of Virginia, and as such commanded said
battalion up to the 15th day of June, 1781, when the battalion was
disbanded by the discharge of such men as were enlisted to serve
only during the continuance of the convention prisoners in the
State of Virginia.
Page 137 U. S. 116
"
"3. There is no evidence showing that Colonel Francis Taylor
ever resigned his commission in the continental service, or that he
was ever otherwise than ready and willing to render service in the
same or higher grade when required so to do."
"4. The acceptance of the Virginia line and officers of the
commutation offered under the resolution of Congress of March 22,
1783, was made and duly reported as required by the
resolution."
"5. Colonel Francis Taylor died on or about the 16th day of
November, 1799."
"6. Colonel Francis Taylor was not paid the half pay for life,
under the Resolution of Congress of October 21, 1780, and no
commutation certificate was issued to him or his heirs in lieu
thereof."
"7. Colonel Francis Taylor, during his lifetime, and his heirs
and legal representatives since, have made frequent and continuous
application to the government and to Congress for the payment of
this claim up to the time of bringing this suit, and on the 22d day
of January, 1859, a memorial to Congress praying its payment was
referred by the House of Representatives to this Court for
adjudication. Which resolution is in the words following:"
"
Ordered that the petitions and papers in the cases of
Dr. Charles Taylor, Colonel Francis Taylor, and James Broadus, be
withdrawn from the files of the House, and referred to the Court of
Claims."
"House Journal 1858-59, p. 241."
"8. It appears, and the court finds the fact to be, that on the
5th March, 1779, Lieut. Colonel Taylor, then commanding the
regiment known as the 'Albemarle Guards,' was commissioned as
colonel by the Governor of Virginia, and that he continued to
command the regiment with the rank of colonel until it was
disbanded. It further appears that the regiment continued in the
continental service after the expiration of the year's service
designated in the Resolution of 9th January, 1779, 3 Jour.Cong. p.
179, and until the 15th June, 1781, when the regiment was
disbanded. It further appears that on the 13th February, 1781,
while the Baron Steuben was acting as inspector general of the
continental forces, and
Page 137 U. S. 117
was charged with the duty of consolidating and reducing the
regiments of the line furnished by Virginia under the resolutions
of 3d and 21st October, 1780, 3 Jour.Cong. pp. 532, 538, Mr.
Jefferson, then Governor of Virginia, addressed the following
official communication to Colonel Taylor:"
"Richmond, Feb. 13, 1781"
" Sir: . . . Congress having determined newly to model their
forces, the Baron Steuben is now here on that business."
" The assembly have directed the executive to have the same done
as to the state troops."
" Your regiment, being in the continental service, will be
submitted to Baron Steuben. Till this be done, which, however, will
be done in a few days, no promotions can take place. . . ."
"And on the 14th March, 1781, Mr. Jefferson, as Governor of
Virginia, likewise addressed the following official communication
to Colonel Taylor:"
"In council, March 14, 1781"
"Colonel F. Taylor."
" Sir: Before this comes to hand, Colonel Woodwill have received
orders to carry the conventioners to Knowland's Ferry, thence to be
guarded by the State of Maryland."
" At that place, therefore, you will please to discharge such of
your regiment as were enlisted to serve only during the continuance
of the conventioners in Albemarle, or in this state. . . ."
"It also appears that Mr. Jefferson, while Governor of Virginia,
on the 28th of November, 1779, addressed the following
communication to the Commander in Chief:"
"Williamsburg, November 28, 1779"
"To his Excellency, General Washington:"
" Sir: Your Excellency's letter on the discriminations which
have been heretofore made between the troops raised
Page 137 U. S. 118
within this state, and considered as part of our quota, and
those not so considered, was delivered me four days ago. I
immediately laid it before the assembly, who thereupon came to the
resolution I now send you."
" The resolution of Congress of March 15, 1779, which you were
so kind as to enclose, was never known in this state till a few
weeks ago, when we received printed copies of the Journal of
Congress."
" It would be a great satisfaction to us to receive an exact
return of all the men we have in continental service who come
within the description of the resolution, together with our state
troops in continental service. Colonel Cabell was so kind as to
send me a return of the continental regiments commanded by Lord
Stirling, of the First and Second Virginia State Regiments, and of
Colonel Gist's regiment."
" Besides these are the following,
viz.: Colonel
Harrison's regiment of artillery; Colonel Baylor's horse; Colonel
Bland's horse; General Scott's new levies, part of which are gone
to Carolina and a part are here; Colonel Gibson's regiment,
stationed on the Ohio; Heath and O'Hare's independent companies at
the Stomel Station; Colonel Taylor's regiment of guards to the
convention troops. Of these we have a return."
" There may possibly be others not occurring to me."
" A return of all these would enable us to see what proportion
of the Continental Army is contributed by us. . . ."
"It further appears that no official records are known to exist
which set forth the grounds upon which Colonel Taylor was
commissioned as colonel of the Albemarle Guards on the 5th March,
1779, nor any official record which would explain the reason why
the said regiment continued in service beyond the year for which it
was enlisted under the resolution of 9th January, 1779; nor any
official record which would show whether the said regiment, or a
portion of it, did or did not reenlist for the war under the
resolution of January 23, 1779, 3 Jour.Cong. p. 190; nor any
official record which would show whether a portion of the said
regiment continued in service after the regiment was disbanded on
the 15th June, 1781; nor
Page 137 U. S. 119
any official record which would show that Colonel Taylor was
discharged from the service when his regiment was disbanded."
"But it appears from an ancient writing found in the public
archives of the State of Virginia, purporting to be the proceedings
of 'a board of field officers, begun at Chesterfield, February 10,
1781, by order of Maj. Gen. Baron Steuben, for the purpose of
arranging the Virginia line,' that the regiments reduced in the
State of Virginia under the resolutions 3d and 21st October, 1780,
3 Jour.Cong. pp. 532-538, were the eleven regiments of the Virginia
line, and one regiment of artillery, the former during the month of
February being reduced to eight regiments, and that the only
colonels mentioned in the said proceedings as reduced were Cols.
William Heath and Abraham Buford, two of the twelve regiments being
at the time without colonels. It does not appear that any other
reduction of Virginia troops took place under the resolutions 3d
and 21st October than that at Chesterfield; nor does it appear that
the regiment known as the 'Albemarle Guards' was reduced by the
Baron Steuben or by any other official authority under the
resolutions aforesaid. The ancient writing referred to is among the
official papers of the First Auditor's office of the State of
Virginia. It is not signed or authenticated by any person, but was
placed among the official records not long subsequent to the
proceedings of the board, and has always been treated by the
officers having it in charge as an authentic record of the
proceedings of the board."
"9. No certificate of indebtedness, as prescribed by the
resolution March 22, 1783, 4 Jour.Cong. p. 178, was ever issued to
Colonel Taylor by the Superintendent of Finance for the commutation
of five years' full pay, instead of the half pay for life, given to
officers of the Continental Army by the previous resolution,
October 21, 1780, nor by the Paymaster General, as prescribed by
the resolution 4th July, 1783, 4 Jour.Cong. p. 237."
"On the 30th July, 1783, the State of Virginia, by the Auditor
of Public Accounts, pursuant to an Act of Assembly passed at the
November session, 1781, 10 Hen.Stat. 462, settled the account of
Colonel Taylor for the balance of his full pay, commonly known as
'depreciation pay,' and issued
Page 137 U. S. 120
to him evidence of indebtedness for �679 19
s.
2
d., this being for his services as lieutenant colonel
from the 24th December, 1778, to the 5th March, 1779, and for his
services as colonel from the 5th March 1779, to the 15th June,
1781, and at various times subsequent to the 27th November, 1783,
the State of Virginia, by the proper officers, issued to Colonel
Taylor land warrants for eight years of service as an officer in
the Continental Army. "
"The foregoing payment of the State of Virginia of �679
19
s. 2
d. was one of the payments of that state to
continental officers subsequently assumed and refunded to the state
by the United States. On the 4th of February, 1850, the
commissioner of pensions issued to the administrator of Colonel
Taylor's estate a land warrant for services as colonel in the
Continental Army."
"10. The five years' full pay authorized by the resolution 22d
March, 1783, 4 Jour.Cong. p. 178, amounted, for a colonel of
infantry, to the sum of $4,500."
"11. On the 19th day of March, 1834, John H. Smith,
commissioner, reported to the Governor of the Commonwealth of
Virginia, in the case of the heirs of Francis Taylor, in the
following words:"
"
Heirs of Francis Taylor, Colonel
Continental"
" Colonel Taylor has received land for a service of eight years
as major."
" He was colonel in the continental service, and ought to have
been allowed land in that character."
" There is no proof of his being entitled to land for a longer
time than eight years."
" His heirs are entitled to the difference between the bounty to
a colonel and that to a major for a service of eight years."
" This claim has been reported in List No. 2, which has been
printed by order of the House of Delegates."
" Respectfully submitted"
"JOHN H. SMITH"
"
Comm'r, etc."
" March 19th, 1834"
"To His Excellency, Governor Floyd. "
Page 137 U. S. 121
"The name of Francis Taylor was reported with the rank of
colonel in the continental line for a service of eight years by
John H. Smith, commissioner, in List No. 2, 'of officers of the
Virginia continental and state lines,' etc., 'whose names appear on
the army register,' and said List No. 2 was reported by the
governor in his message to the House of Delegates of the
Commonwealth of Virginia, and was by them ordered printed in 1834,
as Executive Doc. No. 31."
"Subsequently the Governor of the Commonwealth of Virginia
rendered his decision on the report of the commissioner in the case
of the heirs of Francis Taylor in the following words:"
"To the heirs of Francis Taylor, for his services as colonel in
the continental line from October 1, 1775, to the close of the
war:"
"
Ordered that the register issue warrants accordingly,
if not already drawn."
"And upon the foregoing findings of fact the court decides as
conclusions of law:"
"(1) The foregoing circumstantial facts set forth in finding 8,
taken in connection with the contemporary resolutions of the
Continental Congress and the historical events of the war occurring
during the same period, are not sufficient evidence to authorize or
sustain a finding of the ultimate fact that a portion of the
soldiers of Colonel Taylor's regiment of guards reenlisted for the
war and became soldiers in the continental service without the
limitations attached to their original enlistment, under the
Resolution 9th January, 1779."
"(2) The facts set forth in all of the findings are not
sufficient to authorize or sustain a finding of the ultimate fact
that Colonel Taylor's regiment of guards was reduced on the 15th
June, 1781, under and in pursuance of the resolutions 3d and 21st
October, 1780, 3 Jour.Cong. pp. 532-538."
"(3) The claimant, upon the foregoing findings, is not entitled
to judgment under and by virtue of the provisions of the act 5th
July, 1832, 4 Stat. 563. "
Page 137 U. S. 122
"(4) The report of the commissioner of the State of Virginia set
forth in finding 11, though approved and adopted by the governor of
that state, is neither obligatory in law nor conclusive as evidence
against the United States."
On the 14th of March, 1887, after the eleventh finding of fact
had been filed, the claimant moved to amend it by prefixing thereto
the following:
"On the 11th day of March, 1834, the General Assembly of the
Commonwealth of Virginia passed on act in these words:"
"
Be it enacted by the General Assembly that John H.
Smith be, and he is hereby, appointed and constituted a
commissioner, whose duty it shall be to continue the examination
directed under a resolution of the General Assembly of the 21st day
of February, 1833, touching the revolutionary documents of this
commonwealth, and he shall lay before the governor any information
he may discover as to any unsatisfied revolutionary claims of this
commonwealth on the government of the United States."
" It shall, moreover, be the duty of the said commissioner to
examine all claims for military land bounties, not heretofore
decided on, which may arise under any existing law or resolution of
the General Assembly, and report the facts relating to the same,
together with any remarks which he may deem pertinent and proper,
to the governor of this commonwealth, whose decision thereupon
shall be final."
The court made on this application the following ruling:
"Inasmuch as the supreme court takes judicial cognizance of
statutes, state as well as national, and the practice of finding
state laws would be an inconvenience, this request is refused."
At the same time, the claimant asked the court to find the
following fact:
"12. Colonel Francis Taylor was an officer in the continental
service on the 22d day of March, 1783, and continued therein as
such officer to the end of the war."
On that application the court made the following ruling:
"Inasmuch as this finding involves a deduction from specific
facts and circumstances which, so far as they are established by
the
Page 137 U. S. 123
evidence, are set forth in the previous findings, and really
involves a conclusion of law, it is refused."
The claim of the plaintiff now made before us is for the sum of
$4,500, being the amount of five years' full pay to Colonel Francis
Taylor as a colonel of infantry, as being authorized by the
Resolution of the Continental Congress of March 22, 1783, 4
Jour.Cong. p. 178, mentioned in finding 10, with interest thereon
from September 3, 1783, the date of the final treaty of peace
between the United States and Great Britain at the rate of six
percent per annum, amounting in the aggregate to $32,310. This
claim is founded upon the view that Colonel Taylor was in the
military service, in the continental line, to the close of the war
of the Revolution, in 1783.
The Resolution of Congress of March 22, 1783, was as
follows:
"Whereas the officers of the several lines under the immediate
command of His Excellency General Washington did, by their late
memorial transmitted by their committee, represent to Congress that
the half pay granted by sundry resolutions was regarded in an
unfavorable light by the citizens of some of the states, who would
prefer a compensation for a limited term of years or by a sum in
gross to an establishment for life, and did on that account solicit
a commutation of their half pay for an equivalent in one of the two
modes above mentioned, in order to remove all subject of
dissatisfaction from the minds of their fellow citizens, and
whereas, Congress are desirous as well of gratifying the reasonable
expectations of the officers of the army as of removing all
objections which may exist in any part of the United States to the
principle of the half pay establishment, for which the faith of the
United States hath been pledged, persuaded that those objections
can only arise from the nature of the compensation, not from any
indisposition to compensate those whose services, sacrifices, and
sufferings have so just a title to the approbation and rewards of
their country,"
"
Therefore resolved that such officers as are now in
service, and shall continue therein to the end of the war, shall be
entitled to receive the amount of five years' full pay in money, or
securities on interest at six percent per annum, as Congress
Page 137 U. S. 124
shall find most convenient, instead of half pay promised for
life by the resolution of the 21st day of October, 1780, the said
securities to be such as shall be given to other creditors of the
United States, provided it be at the option of the lines of the
respective states, and not of officers individually in those lines,
to accept or refuse the same, and provided also that their election
shall be signified to Congress through the Commander in Chief, from
the lines under his immediate command, within two months, and
through the commanding officer of the southern army, from those
under his command, within six months from the date of this
resolution."
"That the same commutation shall extend to the corps not
belonging to the lines of particular states, and who are entitled
to half pay for life, as aforesaid, the acceptance or refusal to be
determined by crops, and to be signified in the same manner, within
the same time, as above mentioned."
"That all officers belonging to the hospital department who are
entitled to half pay by the resolution of the 17th day of January,
1781, may collectively agree to accept or refuse the aforesaid
commutation, signifying the same through the Commander in Chief
within six months from this time. That such officers as have
retired at different periods entitled to half pay for life may
collectively, in each State of which they are inhabitants, accept
or refuse the same, their acceptance or refusal to be signified by
agents authorized for that purpose, within six months from this
period. That with respect to such retiring officers, the
commutation, if accepted by them, shall be in lieu of whatever may
be now due to them since the time of their retiring from service,
as well as of what might hereafter become due, and that so soon as
their acceptance shall be signified, the superintendent of finance
be, and he is hereby, directed to take measures for the settlement
of their accounts accordingly, and to issue to them certificates
bearing interest at seven percent. That all officers entitled to
half pay for life not included in the preceding resolution may also
collectively agree to accept or refuse the aforesaid commutation,
signifying the same within six months from this time. "
Page 137 U. S. 125
The resolution of October 21, 1780, 3 Jour.Cong. p. 538,
referred to in the resolution of March 22, 1783, was preceded by
another resolution of October 3, 1780, 3 Jour.Cong. p. 532. The
material provisions of these resolutions are set forth in the
opinion of the Court of Claims, 15 Ct.Cl. 514, in the terms
contained in the margin. [
Footnote
1]
Page 137 U. S. 126
It is apparent from the conclusions of law (1) and (2) and the
opinion of the Court of Claims that the question litigated before
that court was the ultimate fact whether a portion of the soldiers
of Colonel Taylor's regiment of Albemarle Guards (which regiment
was originally raised for a service of one year, and was disbanded
June 15, 1781) reenlisted for the war, and became soldiers in the
continental service, without the limitations attached to their
original enlistment under the resolution of the Continental
Congress of January 9, 1779, 3 Jour.Cong. 179. That resolution was
as follows:
"
Resolved that a battalion, consisting of 600 men,
properly officered, be forthwith raised on continental
establishment in Virginia for the space of one year from the time
of their enlistment, unless sooner discharged, under the direction
of the governor and council of that state, who are hereby empowered
to appoint the officers of the said battalion out of those of the
Virginia line who have been left out of the late arrangement of the
Continental Army, as far as their numbers will reach, the regiment
to consist of one lieutenant colonel commandant and captain, one
major and captain, six captains, one captain lieutenant, seven
lieutenants, nine ensigns, one surgeon, one surgeon's mate, eight
companies of 75 men each, including corporals, three sergeants, one
drum, and one fife to each company;"
"That these troops be stationed at, and not removed (except to
such distances as the duty of the post may require) from, the
barracks in Albemarle County, as guards over the convention troops;
that they receive the usual pay of the Continental Army, and a suit
of clothes as a bounty to each noncommissioned officer and
private;"
"That as soon as the said regiment shall be so far completed
Page 137 U. S. 127
as to be able to do the duty of the post, the militia now in the
service there be discharged."
It also appears that the further question was litigated whether
the court was authorized to find the ultimate fact that the
regiment of guards, when it was disbanded on the 15th of June,
1781, was "reduced," within the terms of the resolutions of October
3 and 21, 1780.
The opinion of the Court of Claims says of the claim in suit
that it
"has regretfully reached the conclusion that the moral
probabilities on which it rests do not constitute such a foundation
of circumstantial evidence as would sustain a verdict in a suit at
nisi prius, or authorize a judgment in this Court."
It further says:
"During the period of the revolution, the term 'muster out' was
not used, and troops, either individually or as organizations, are
spoken of as 'discharged' when dismissed from the continental
service. A regiment broken up and consolidated is spoken of as
'reduced,' and officers who were thereby thrown out and became
unattached were designated as 'supernumeraries.' The consolidated
regiments, moreover, are variously designated as 'the new
arrangement,' the 'new establishment,' the 'newly constructed
corps,' etc. As to the term 'disbanded,' it seems to have had no
technical significance. When a regiment was disbanded, some of its
soldiers may have been discharged and some transferred to other
regiments, the term denoting simply the dissolution of the
regiment."
The opinion says that Francis Taylor, who was then a major and
supernumerary officer, thrown out by the consolidation of regiments
in 1778, known as the "White Plains arrangement," and liable to be
called into service on the one hand, and entitled to half pay for
life on the other, was assigned to the command of the Albemarle
Guards with the rank of lieutenant colonel, that body being a
regiment raised for the purpose of guarding the captured army of
General Burgoyne, known as "the convention troops," the duty of
guarding whom had been assigned to the State of Virginia, and that
Francis Taylor was commissioned as colonel of the
Page 137 U. S. 128
regiment by the Governor of Virginia on the 5th of March, 1779.
It also says that the regiment of guards was not designated in
direct terms in the resolutions of October 3 and 21, 1780, nor
embraced in any general classification contained in those
resolutions; that it was raised for the space of one year from the
time of enlistment, unless sooner discharged; that it was to be
"stationed at, and not removed (except to such distances as the
duty of the post may require) from, the barracks in Albemarle
County, as guards over the convention troops;"
that if it continued on that basis until it was discharged in
June, 1781, its officers did not become supernumeraries, under the
resolutions of October 3 and 21, 1780, for reorganizing the
Continental Army; that the guards would have passed out of
existence before the time for reorganization arrived, and that, as
originally constituted, it had no enlisted soldiers who could be
transferred to the regiments of the line, because its soldiers were
enlisted for a limited period and for a limited, designated
service, which service was to be rendered within prescribed,
narrow, territorial limits. The opinion states the question to be,
therefore, whether the guards, or a portion of them, had reenlisted
for the war under the Resolution of Congress of January 23, 1779, 3
Jour.Cong. p. 190, and became reduced or consolidated with other
regiments under the Resolutions of October, 1780.
The resolution referred to, of January 23, 1779, was
"that the Commander in Chief be authorized and directed to take
the most effectual measures to reenlist for the continuance of the
war all such of the continental troops as are not expressly engaged
for that period,"
and it promised new bounties and rewards "to each able-bodied
soldier now in the service and who shall voluntarily reenlist
during the war."
The opinion then proceeds to consider the arguments adduced on
the part of the claimant to show that the soldiers of the guards
did reenlist, and in regard to those arguments says:
"The circumstances and coincidences so much relied upon, though
they might appeal strongly as establishing a moral probability to a
body possessed of legislative discretion, do not rise to the
standard of legal evidence, and are
Page 137 U. S. 129
insufficient to authorize a judgment or sustain a verdict. No
authenticated document nor official record has been produced to
show that a single soldier of Colonel Taylor's regiment had
reenlisted for the war, or was liable to serve beyond the limits of
the State of Virginia, or could have been transferred to regiments
of the line under the resolutions. No such averment was made by
Colonel Taylor himself in his petitions to Congress and the House
of Delegates, nor is it alluded to in any contemporary report,
letter, or communication. Neither the House of Delegates, in 1783,
nor the Secretary of War, Gen. Knox, in 1791, regarded the
Albemarle Guards as one of the regiments which had been reduced and
consolidated under the resolutions of 1780, and the silence of the
resolutions themselves, with all their particularity as to other
commands, indicates that the Continental Congress were not aware of
there being soldiers in the guards who were liable to be
transferred to the line. Moreover, the time when the regiment was
disbanded (June 15, 1781) was subsequent to the consolidation of
the Virginia regiments by the Baron Steuben (February), and the
apparent cause of disbandment was not its consolidation with other
regiments, but the termination of the service or duty for which it
had been raised and on which it had been exclusively engaged. The
mention of the guards in the resolutions 9th February, 1780, 3
Jour.Cong. 432, and in the correspondence of Mr. Jefferson with
General Washington, on which great stress was laid in the argument,
was applicable to the regiment whether its soldiers had reenlisted
or not, for it was proper and just that its soldiers, who were
continuing in service beyond the period of their enlistment, and
who, in all seeming likelihood, were to continue in the service of
guarding the prisoners till the end of the war, should be credited
to the quota of Virginia."
The opinion then gives the language of the resolutions of
February 9, 1780, which are set forth in the margin, [
Footnote 2] and
Page 137 U. S. 130
proceeds:
"The first purpose of the resolutions was manifestly to fix and
determine the number of men which each state should contribute. The
second likewise related to state quotas, being a declaration that
all of the men whose terms of service would not expire before the
last of September following should be credited to their respective
states, accompanied by a pledge that the men (not the officers and
men) of certain irregular organizations, 'including the guards, . .
. should be provided for, deemed, and treated in the same manner'
as the men in the line. The third provision was a recommendation to
the states 'to make like provision for the officers and men' of the
designated irregular corps, 'including the guards,' as might be
made 'for the officers and men of their respective battalions.' In
the first provision, the guards were referred to as a corps which
had, or which might have had, men who should be credited on the
quota of Virginia. In the third, the
Page 137 U. S. 131
officers and men of the guards are designated as among those for
whom the states should make the same provision which they would
make, 'in pursuance of any resolution of Congress,' for the
officers and men of their respective battalions. It is true that
the language of the resolutions does seem to indicate that then, on
the 9th February, 1780, there were men in the guards 'whose times
of service do not expire before the last date of September next.'
But it is also true that the words 'including the guards,' in the
first provision, may have been intended merely as a comprehensive,
sweeping clause, equivalent to saying that all men whose times of
service did not expire, in whatever corps they might be found,
should be counted upon the quota of Virginia, and that the same
words in the third provision were intended as new legislation, as a
special provision to classify the guards who were continuing to
serve beyond their times of enlistment with men whose enlistment
would not expire 'before the last date of September next.' Be that
as it may, we cannot accept the ambiguous phraseology of the
resolutions as authoritatively fixing the desired fact that the
guards, or a portion of them, had reenlisted for the war, and were
liable to be reduced and consolidated under the resolutions which
followed in October of the same year. It was proper and just that
these officers and men should be thus provided for, but it does not
follow that such a recognition establishes the fact that they stood
on the same basis of enlistment for the war and for service in the
field that the troops of the line stood upon."
Referring to the fact of the "depreciation pay" which Colonel
Taylor received for the time he served as colonel of the guards,
from March 5, 1779, to June 15, 1781, under the resolution of
Congress of April 10, 1780, 3 Jour.Cong. p. 447, which provided
that "no person shall have any benefit of this resolution, except
such as were engaged during the war, or for three years, and are
now in service," the opinion says:
"Finally, the depreciation pay, which, under the resolution 10th
April, 1780, was only to be given to persons who 'had engaged to
serve during the war, or for three years,' may well have been
allowed to Colonel Taylor, as a supernumerary officer
Page 137 U. S. 132
in actual service by virtue of the terms of his original
enlistment. But whatever the theory upon which it was allowed, we
cannot infer from it the fact that Colonel Taylor's regiment, in
whole or in part, had reenlisted for the war, and that he had been
reduced under the resolutions of October, 1780. Upon the whole of
the evidence, we must rule that it is insufficient to sustain a
verdict, and that we are not at liberty, when sitting in the stead
of a jury, to pass upon it or to deduce ultimate facts from
it."
In the report of the case on the motion for a new trial, 22
Ct.Cl. 116, it is stated that the purpose of the motion
"is to establish the fact that Colonel Francis Taylor, of the
Albemarle Guards, continued in the service of the Continental
Congress after the disbandment of his command in June, 1781, until
the end of the war."
On the argument before this Court, the counsel for the claimant
contends that his right to recover depends upon the question
whether Colonel Taylor continued in the service until the end of
the war or was retired before that time, and thereby became
entitled to half pay for life or to the commutation therefor; that,
if it be found that he did not continue in the service until the
end of the war, yet if he was retired or "reduced" at any time
after October 21, 1780, he was entitled to half pay for life, under
the resolution of that date; that, as he was entitled to half pay
for life as major in 1778, the burden is upon the United States to
show that he did not continue in the service to the end of the war;
that it is not shown that he retired from the service in June,
1781, when the regiment was disbanded, or that he again became a
supernumerary; that although the law providing half pay for life
was modified by the resolutions of October 3 and 21, 1780, while he
still commanded the guards, yet the only modification was as to the
time when the half pay should begin, the modification being that it
should begin at the time the officer was reduced or retired from
the service; that this modification was in force in June, 1781,
when the guards were disbanded; that under its provisions, Colonel
Taylor would have been entitled to half pay for life in his new
grade as colonel, to begin from the time the guards were
disbanded,
Page 137 U. S. 133
even if he had then retired from the service; that if he had
been treated in June, 1781, as a supernumerary major, he still
would have been entitled from that date to half pay as a major;
that there is no evidence that he was reduced in rank, and that he
was a colonel in the Continental Army on the 15th of June,
1781.
In the brief presented to us on this appeal, the counsel for the
claimant departs from the questions litigated in the Court of
Claims, as shown by the first two conclusions of law and by the
opinion of that court, and contends that the issue is as to whether
or not Colonel Taylor continued in the service to the end of the
war or retired before that time, and that the ultimate fact to be
proved is the duration of his own personal service, and not the
duration of the service of any of the soldiers composing the
guards. The contention appears to be that under the resolutions of
October, 1780, a continuous service throughout the war by Colonel
Taylor, or his retirement before its close, entitled him to half
pay for life.
But this view is not tenable, because the resolution of October
3, 1780, provided for half pay for only seven years, and only for
those officers who became supernumeraries under the arrangement
provided for by that resolution, and the resolution of October 21,
1780, had reference only to the same officers, whose names were to
be transmitted to Congress, and who are called therein "officers
reduced" -- that is, in the language of the resolution of October
3, 1780, officers "thrown out by the reduction." Those were the
only officers who were by the latter resolution "allowed half pay
for life." It is inaccurate, therefore, to say that the only change
made by the resolutions of October, 1780, was as to the time half
pay for life should begin.
Whether Colonel Taylor retired from service at the time the
regiment was disbanded or whether he continued in the service to
the end of the war, he was not a "reduced" officer within the
meaning of that term as used in the resolutions of October, 1780.
The scheme of those resolutions did not apply to such organizations
as that of the guards, nor to officers who were not reduced under
those resolutions, although
Page 137 U. S. 134
they should continue in service to the end of the war. An
officer who left the service at the end of the war was not
"reduced."
The commission of Francis Taylor as colonel came from the
Governor of Virginia, and the order to discharge the soldiers of
the regiment also came from him. It was an irregular regiment,
created for a particular service and charged with a specific duty
to be performed in a designated locality. Service in the regiment
was inconsistent with service in the Continental Army. Such
commission as Francis Taylor held prior to January 9, 1779, was
practically revoked by the terms of the resolution of Congress of
that date, which authorized the Governor and Council of the State
of Virginia to appoint the officers of the new regiment out of
those of the Virginia line who had been "left out of the late
arrangement of the Continental Army," and by his acceptance of the
appointment of lieutenant colonel of the new regiment. His
obligation to serve in the guards disqualified him from continuing
as a supernumerary in the continental service. He could not perform
duty under his commission as lieutenant colonel or colonel of the
guards and at the same time hold himself in readiness to respond to
a call to the field in the continental service.
The third conclusion of law made by the Court of Claims was
that, upon its findings of fact, the claimant was not entitled to
judgment under and by virtue of the provisions of the Act of July
5, 1832, 4 Stat. 563. In regard to that statute, the court remarks
in its opinion that it was intended to reimburse the State of
Virginia for certain judgments which had been recovered against
that state in her own courts, by officers, for half pay, and to pay
directly, without waiting for judgments to be recovered against the
state, similar claims covered by the decision in
Lilly's
Case, 1 Leigh 529; that the first section of that act is
limited to officers commanding in the "Virginia line;" that the
second section refers to certain regiments and corps specifically
designated by name, and does not specify the Albemarle Guards; that
the third section directs the Secretary of the Treasury "to adjust
and settle those claims" of officers "of the aforesaid regiments
and
Page 137 U. S. 135
corps which have not been paid or prosecuted to judgments
against the State of Virginia," and that the benefits of the third
section are clearly limited to the regiments and corps enumerated
in the second section, and cannot be extended to the officers of
other regiments or corps, though they may have a valid claim for
half pay against that state. It is said in the brief of the counsel
for the claimant that it was never contended by him that that act
was anything more than a legislative interpretation of the several
resolutions of the Continental Congress which are in question, or
that it created any new liability on the part of the United States.
We concur in the view of the Court of Claims.
The fourth conclusion of law of that court was that the report
of the commissioner of the State of Virginia, set forth in finding
11, although approved and adopted by the governor of that state,
was neither obligatory in law upon, nor conclusive as evidence
against, the United States.
The State of Virginia, on the 11th of March, 1834, Laws of 1834,
c. 6, p. 22, passed an act appointing John H. Smith a commissioner
and making it his duty to continue an examination previously
directed touching the revolutionary documents of the state, and to
lay before the governor any information he might discover as to any
unsatisfied Revolutionary claims of the state on the government of
the United States, and further making it his duty to examine all
claims for military land bounties, not theretofore decided on,
which might arise under any existing laws or resolutions of the
General Assembly, and to report the facts relating to the same,
together with any remarks he might deem pertinent and proper, to
the governor of the state, "whose decisions thereupon shall be
final." The decision of the governor on the report of the
commissioner in the case of the heirs of Francis Taylor was made in
September, 1850, and speaks of Taylor "as colonel in the
continental line from October 1, 1775, to the close of the war." It
is contended by the claimant that under section 906 of the Revised
Statutes, this decision of the Governor of Virginia is conclusive
against the United States to show that Taylor continued in the
continental service until the close of the war.
Page 137 U. S. 136
The provision of section 906 is that records and
exemplifications of books kept in any public office of any state,
when authenticated in the manner provided by that section,
"shall have such faith and credit given to them in every court
and office within the United States as they have by law or usage in
the courts or offices of the state"
from which they are taken. The Court of Claims, in its opinion
overruling the motion for a new trial, 22 Ct.Cl. 116, states that
the clause above quoted from section 906 did not impart to the
authenticated state record anything more than "faith and credit,"
and did not extend the effect of a decision against a state to the
United States, nor make an award or judgment which might be final
against a state "either obligatory in law or conclusive as evidence
against the United States." We concur in this view.
It is also alleged for error by the claimant that the Court of
Claims refused to find that "Colonel Francis Taylor was an officer
in the continental service on the 22d day of March, 1783, and
continued therein as such officer to the end of the war," stating,
as the ground of its refusal, that the proposed finding involved a
deduction from specific facts and circumstances which, so far as
they were established by the evidence, were set forth in the
previous findings, and really involved a conclusion of law. The
claimant contends that the finding requested was a conclusion of
fact drawn from other specific facts and circumstances established
by the testimony; that he was entitled to have that conclusion of
fact found by the court; that such fact was not a question of law,
and that even if it were, the court erred in not finding it as a
conclusion of law.
Perhaps, under the rulings of this Court in
United States v.
Pugh, 99 U. S. 265,
99 U. S. 270;
Sun Mutual Ins. Co. v. Ocean Ins. Co., 107 U.
S. 485,
107 U. S. 503;
The Belgenland, 114 U. S. 355,
114 U. S. 362,
and
McClure v. United States, 116 U.
S. 145,
116 U. S. 151,
the question involved in the proposed finding which was refused,
was a question of law. In
United States v. Pugh, one of
the issues to be determined was whether the proceeds of the sale of
certain captured property belonging to the claimant had been paid
into the Treasury. No direct
Page 137 U. S. 137
proof to that effect had been given, but, if shown at all, it
was by way of inference from certain circumstantial facts
established by the evidence, and set forth in the findings of the
Court of Claims. This Court said that the Court of Claims had found
all the facts which had been established directly by the evidence;
that those facts were
"the results of evidence, and whether they establish the
ultimate fact to be reached is, if a question of fact at all, to
say the least, in the nature of a question of law;"
that the inquiry presented was as to the legal effect of facts
proved, not of the evidence given to make the proof; that the
question of practice to be settled was whether, under the rule of
this Court as to appeals from the Court of Claims, the judgment of
the latter court as to the legal effect of what might, perhaps not
improperly, be called the ultimate circumstantial facts in a case,
was final and conclusive, or whether it could be reviewed by this
Court; that under that rule, this Court could not consider the
evidence, but its attention must be confined to the legal effect on
the rights of the parties of the facts found by the Court of
Claims, and that in that way the weight of the evidence was left
for the sole consideration of that court, but the ultimate effect
of the facts which the direct evidence had established was left
open for review here on appeal. But whether the proposed finding
which was refused in the present case was a conclusion of law from
the facts already found or an additional conclusion of fact, we are
of opinion that the Court of Claims was correct in refusing to find
it.
In the opinion of the Court of Claims in 22 Ct.Cl. 116, it is
stated that part of the newly discovered evidence set up as a
ground for a new trial consisted of
"certain resolves and proceedings of the Continental Congress,
and certain resolves of the General Assembly of Virginia, and
official correspondence in the first and second volumes of the
state papers of Virginia."
In regard to these papers, the Court of Claims says that it is
"of the opinion that if they had been put in evidence on the trial
they would not have changed the result." We concur in this view,
after having examined the papers.
This case is very much like that of Dr. Charles Taylor,
reported
Page 137 U. S. 138
as
Williams v. United States, 13 Ct.Cl. 395. Charles
Taylor was a surgeon's mate in the Continental Army from 1776 to
1778, and then was reduced, and became a supernumerary officer. In
1779, he was appointed a surgeon's mate in the regiment of
Albemarle Guards, and accepted and held that position. In October,
1779, he was promoted to be surgeon in the regiment, and held that
place until the regiment was discharged, June 15, 1781. He claimed
five years' full pay as surgeon in the Virginia line of the
Continental Army, under the same resolutions and proceedings that
are now involved in the case of Colonel Francis Taylor. The Court
of Claims decided that he could not have full pay as an officer of
the guards and at the same time be entitled to half pay as a
reduced and supernumerary officer. The claim was rejected, and
there was an appeal to this Court. The opinion of this Court is
reported as
Williams v. United States, 25 L.C.P.Co. ed.
309, and 14 Ct.Cl. 590. It is also referred to as No. 1058 on page
ccxxviii of the appendix to 131 U.S. In its opinion, this Court, in
affirming the judgment of the Court of Claims, said that Dr.
Charles Taylor did not continue in service until the end of the
war, within the meaning of the resolutions of October 21, 1780, and
March 22, 1783; that when he accepted his appointment in the
regiment of the guards in January, 1779, he ceased to be a
supernumerary surgeon's mate, and became an active officer in that
regiment; that when it was discharged, because its term of
enlistment had expired, he was out of service; that when it was
raised, the Governor and Council of Virginia were authorized by
Congress to appoint its officers out of those in the Virginia line
who were then supernumerary, and that the acceptance of an
appointment in the new regiment took the officer out of his former
position in the line.
Judgment affirmed.
[
Footnote 1]
"The Continental Congress, by the resolutions 3d October and
21st October, 1780, 3 Jour.Cong. pp. 532, 538, determined to
reorganize the army in a manner which would involve the
consolidation or reduction of regiments. The army, which was to be
reduced, as designated by the resolutions, then consisted of
sixteen 'additional regiments,' some or all of which had not been
'annexed to the line' of any 'particular state,' of certain
specifically named irregular battalions and light corps, and of
eighty battalions, known as the 'continental line.' As to the
sixteen additional battalions, and the irregular battalions
specifically named, the resolutions directed that they 'be
reduced,' and the noncommissioned officers and privates 'be
incorporated with the troops of their respective states.' This
provision related to troops which had been raised directly by
Congress, and its purpose was three-fold -- to sweep them out of
existence as organizations; to transfer the men to the regular
regiments of the continental line, and to credit them to the quotas
of their respective states."
"The resolutions next provided for the further reorganization of
the army at large -- of the continental line. So far as this case
is concerned, it is sufficient to say that they provided in effect
that the eleven regiments in the line furnished by Virginia should
be reduced to eight, and that no mention of the Albemarle Guards is
made in the resolutions."
"Having thus provided for the transfer of men, and reduction of
regiments, the resolutions further declared with regard to the
officers who would necessarily be thrown out by the reduction:"
" And whereas, by the foregoing arrangement, many deserving
officers must become supernumerary, and it is proper that regard be
had to them,"
"
Resolved that from the time the reform of the army
takes place, they be entitled to half pay for seven years, in
specie or other current money equivalent, and also grants of land
at the close of the war, agreeably to the resolution of the 16th of
September, 1776."
"
Ordered that a copy of the foregoing arrangement of
the army be sent to the Commander in Chief for his opinion thereon,
and that if there shall appear no material objections, the same be
carried into immediate effect."
"Resolution October 3, 1780."
" Congress resumed the consideration of the report of the
committee on General Washington's letter of the 11th, and
thereupon, . . ."
"
Resolved that the whole of the troops be enlisted
during the war, and join their respective corps by the 1st day of
January next."
" That the Commander in Chief and commanding officer in the
southern department direct the officers of each state to meet and
agree upon the officers for the regiments to be raised by their
respective states, from those who incline to continue in the
service, and where it cannot be done by agreement, to be determined
by seniority, and make return of those who are to remain, which is
to be transmitted to Congress, together with the names of the
officers reduced, who are to be allowed half pay for life."
"Resolution October 21, 1780."
[
Footnote 2]
"
Resolved, that for the ensuing campaign, the states be
respectively required to furnish, by draughts or otherwise, on or
before the 1st day of April next, their respective deficiencies of
the number of 35,211 men, exclusive of commissioned officers, which
Congress deem necessary for the service of the present year. That
the quotas of the several states be as follows:"
New Hampshire . . . . . . 1,215
Massachusetts Bay . . . . 6,070
Rhode Island. . . . . . . 810
Connecticut . . . . . . . 3,238
New York. . . . . . . . . 1,620
New Jersey. . . . . . . . 1,620
Pennsylvania. . . . . . . 4,855
Delaware. . . . . . . . . 405
Maryland. . . . . . . . . 3,238
Virginia. . . . . . . . . 6,070
North Carolina. . . . . . 3,640
South Carolina. . . . . . 2,430
[Exclusive of blacks]
"That all the men whose times of service do not expire before
the last date of September next be counted toward the quotas of the
states to which they respectively belong, whether they compose the
battalions in the line of the several states, those of the
additional corps, including the guards, the artillery, and horse,
or the regimental artificers in the departments of the
quartermaster general and commissary general of military stores,
who, being credited to the states respectively, should be provided
for, deemed, and treated in the same manner with the men in the
several state lines, and it is recommended to the several states to
make like provision for the officers and men of the artillery,
horse additional corps, including the guards and regimental
artificers, as may be made, in pursuance of any resolution of
Congress, for the officers and men of their respective battalions,
with such exceptions, respecting the regimental artificers, as have
been made by Congress in their acts concerning them."