to them in that act, was a conditional one; and when the proposition was accepted, and the condition was performed on their part, it became a contract on the part of the United States, strictly and technically so speaking-a contract with those officers, not as a body, but with each individual officer. In 1783, when the treaty of peace was concluded and ratified, these contracts were perfected and perfect, and became from that moment obligatory upon the United States; and are still obligatory, unless they have been rescinded by each individual acting for himself. For several parties to several contracts, cannot rescind those contracts for one another; nor can a major. ity of all those parties rescind them for all. The idea is preposterous. [JAN. 29, 1828. commutation was a fair equivalent for the half pay. This question then arises-whether it was a fair equivalent; and if so, whether this equivalent has been paid up according to the terms of this contract. But upon these questions I do not propose now to speak. Both have been so clearly explained by the honorable gentleman who made the report, and by others in this debate, that if I nade the attempt, I could not hope to shed upon them any additional light. I could but repeat what they have stated, and I fear I should but weaken what I repeated. Mr. CHANDLER said he was no lawyer, and did not understand the nature of contracts. But he gathered from what had been said, that if any original contract was If these contracts have been rescinded, it must be, I re- changed by the consent of the parties, it was still bindpeat, by the individual assent of each officer to the resing. It appears that a majority of the officers did ac cinding act, whatever that act may be. If that assent has cept the terms of the commutation, and that majority, in been given, I agree it is not material in what form it was his opinion, swept away the original contract. And he given; nor whether by words or by acts; whether ex- looked upon the acceptance of the commutation certifi pressed in the former, or implied by the latter: but the cates as a proof positive of their acquiescence in the fact of the assent, and of the individual assent, is material. terms proposed. Otherwise, said Mr. C., I consider it Now as to the evidence of this assent. The votes of binding on the claimants to show evidence that they did the army lines, determined by majorities in those lines, not vote for the commutation law. If that could be is not evidence of individual assent; not even in those shewn, the case would have been made out. majorities; for it is impossible to say who voted in those majorities; and who did not vote in them; it is impossible, therefore, to bring home the assent to any one individual in particular. And there is no pretence, to say that these votes were unanimous. Had they been unanimous, it would have amounted to the requisite proof, as to each individual; but they were not unanimous; and the proof is that the votes were reported to Congress as majorities merely; a majority of the whole, certainly is not the whole; regarding, then, the votes of these majorities as not being evidence of individual assent-what evidence of individual assent remains? It is said that the acts of these officers imply this as sent; that in point of fact they did accept of the commutation notes, given as a substitute for half pay, and did receive them in lieu of the half pay; that this was impli ed assent, and was individually given. All this is very true, and would be quite conclusive against the officer, if this assent was voluntary. Here is the turning point of the whole case. If this assent was voluntary, it was conclusive against the officer; but if it was compulsory, it was not conclusive. How was the fact? Mr. SMITH, of Maryland. I remarked on a former occasion that the Southern lines never did vote. General Green never propounded the question to the officers un. der him-and when they returned home they were forced to accept the certificates. Mr. WOODBURY observed, that there never was any proof of the acceptance of the law by the officers, with the exception of the Report of the Secretary of the Trea sury. But, was it not evident that those who did not vote for the bill were those who were under thirty years of age? They were those alone who were to be injured by it. Besides it is well known that the senior officers had allowed the younger officers to go home on furlough, consequently they were not present when the vote was taken in their respective lines. Mr. HARRISON said that the Committee had been placed in a very delicate position, as they were probably restrained by motives of expediency from proposing all that their feelings and wishes would have led them to recommend. Mr. H. felt this difficulty himself, and thought it necessary to explain his reasons for opposing the introduction of the claims of the soldiers into this bill. ple of which he was in favor. The gentleman from If this alternative had been presented to the officer-He hardly knew how to oppose a measure, of the princi. here, take these commutation notes, or take your half pay for life; and he had taken the commutation notes, the acceptance would have been conclusive upon him, because then it would have been voluntary. But this alternative was not presented to him. The alternative presented to him was this-here, take these commutation notes, or take nothing-yes, or take nothing. That this was the alternative is evident; first, because Congress supposed, and acted upon the idea, that these officers had agreed to accept the commutation in lieu of the half pay; and were to be held precluded. Then in consequence of this supposition, because Congress had made and contemplated making no provision, either immediate or prospective, for satisfying these life annuities, in case the commutation notes should be refused, by these officers, or by any of them. The alternative presented, then, unquestionably was this-either take these notes, or take nothing. And surely an acceptance thus constrained, thus compelled, was not, and could not, be called voluntary. A constrained acceptance a voluntary acceptance! Why, it is a contradiction in terms. You might as well say that a release of a private debt for half its amount, was a voluntary release, and a binding discharge. No as in that case, the debt would still be a subsisting debt, at least for the unsatisfied balance; so this obligation is still a subsisting obligation, unless the : Mr. H. said he regretted that the gentleman from South Carolina had contrasted the claims of the regulars and the militia. Their merits and services could stand by the side of each other safely. He agreed that the claim of the militia was a valid one, and it was not his fault, if it was not acknowledged. The gentleman from South Carolina was mistaken in many of the facts which he had stated; and Mr. H. would endeavour to correct them. The battle of the Cowpens was gained by regu lar troops. General Pickens was the commander of the JAN. 30, 1828.] Surviving Officers of the Revolution.-Judicial Process. [SENATE. regulars, and he acted in this case, as in all others, with | lish their rules, for in his State the people had only learnthe utmost bravery and intelligence. Indeed, Mr. H. was of opinion that his share of the glory had never been awarded to him. He did not occupy the highest position, but he was always to be found at the post of danger. The militia at the Cowpens did all that was required of them; but distinguished themselves in no particular manner. [Mr. H. here read an account of the particulars of the battle.] He had heard a venerable officer doubt if ever a battle was fought before, in which the bayonets of the two parties were crossed; but that here it was the case, and the British were driven. The retreat to which the gentleman from South Carolina had alluded, was caused by circumstances beyond the control of the regular army. And that retreat had placed on high the name of Col. Otho A. Williams, who conducted it in a most masterly manner. ed the nature of the rules of Court, by their operation, and when feeling their effect in the progress of their suits. He protested against the right of judges to alter, to an nul, or to make laws, and desired to confine the Judicia. ry within its own proper orbit. He thought Congress was not wandering from its proper sphere, in passing laws which were not to be altered at the discretion of judges. It might be proper for courts to regulate and modify the mere forms; but this prerogative ought to be much guarded; for there never was a power delegated, which was not carried to its full extent by those in whose hands it was placed. It was difficult to get back power when once given; and here a transfer of power was con templated which might be carried to a dangerous length, as it was in the nature of such grants to steal on gradually in an imperceptible manner, and in the end to defy all redress or retrenchment. If it was necessary, a law to regulate rules of court ought to be passed by Congress. This House was the laboratory in which laws were to be made. And if Congress did not choose to make these laws, let those of the States be adopted, which could ea sily be done, and would suit the desires of all. He be. lieved the people were the best judges of their own interest, and of what would conduce to their happiness; and the happiness of the people was always the prime obter what suited their condition than any central legisla tive power could do. The people in Kentucky were sore on this subject. They had long protested against the wrongs they had suffered; but being a single State, those evils were scarcely heard. It would be different, Mr. Rowan argued, when any number of the States were similarly aggrieved at the same time. Their remonstrances would then be heard, and heard effectually. What was the objection to the amendment proposed by the gentleman from Tennessee? Were the codes of the States too vulgar for the sublimated comprehensions of the Federal Courts. He could not conceive of such a distinction, for, although we had two separate govern ments, we had as yet but one people, and what the laws of one could effect, could be done by the laws of the other. It was a scandal that the States were not placed on a footing in law with an honorable gentleman. The confidence placed in them was not equal to that placed in an individual of good moral character; and it was supposed that the States were capable of partial conduct involving a degree of moral obliquity of which an honest man would scorn to be guilty. If the States could be depended on; if they could be trusted to enact process acts for their own people, why should not the Federal Courts be directed by them? Why should not the intel. lect which regulated the process of the State Courts be applied also to the regulation of the Federal Courts! There was generally as much gravity and industry in the legislatures of the States as in Congress, at least for the On motion of Mr. KANE, the bill for regulating process purposes to which their endeavors were directed. He in the Courts of the United States, in States admitted into hoped the veto of the House might be put upon this questhe Union since 1789, was then taken up, and the ques- tion. He did not believe that the framers of the act of tion being upon the amendment offered by Mr White to 1789, intended that the Federal Courts should have su insert after the word "now" the words, "may be”— preme controul over process in the States from its incip. Mr. WHITE said that some discussion had already oc-iency to its details. On these grounds he had proposed to curred on the amendment offered by him, and as provi- amend the bill. sions were absolutely necessary in some of the districts, rather than embarrass its passage, he would withdraw his amendment. Mr. H. had never heard his friend from South Carolina, with so much dissatisfaction as on this subject. [He here made some allusions to the actions fought during that campaign, in reply to Mr. S., but the reporter has it not in his power to give the detail.] He would make one remark more in relation to the idea that the commutation being accepted, no further claim existed. They had no alternative. The government had no money to give them, and they were induced to take the terms offered. But had they, seeing that they were not paid an equiva-ject of all governments. They certainly understood bet. lent, taken the necessary means, the government would have been obliged to pay a much larger amount. For instance, they might have sold their claims to half-pay, instead of the commutation certificate. It could not be supposed that at a time when the half pay was first offered them, they anticipated being forced to accept a less valuable consideration, when it is recollected that to this promise General Washington attributed the renovation of the army. In every point of view the army deserved the appellation bestowed upon it by him, of the patriot army; and Mr. H. felt regret that the appeal of these officers should have caused so much discussion, and had met with so much opposition. He felt deeply interested in this bill, and he had thought it his duty to correct the errors of his friend from South Carolina, because, in one of the affairs to which he had alluded, a friend of Mr. H.'s took a part, to whom he owed more than to any other person. But besides, he felt interested in preserving inviolate the fame of the heroes of the revolution, to whom he owed, in common with all, the gift of freedom, to which perhaps he might add, that his dearest friend died upon the field in those days of glorious peril. Mr. BERRIEN said that he was desirous of stating his views on this bill; but the day was now too far advanced to justify him in troubling the Senate with further debate. He therefore moved that the Senate adjourn. WEDNESDAY, January 30, 1828. Mr. ROWAN then rose, and in support of an amendment proposed by him, the effect of which was to take away the power of the Federal courts, to supervise and modify the process laws passed by the State legislatures, expressed himself at considerable length, alluding more particu. larly to abuses that had arisen in the State of Kentucky. He observed that the judges ought to be made to pub. Mr. KANE said that he had hoped that this question would have been settled before the hour had arrived for the consideration of special orders. The measure was so essential to several of the new States that he was very desirous that it should now be disposed of. The gentleman from Kentucky had moved to strike out that portion of the bill which subjects the laws of process to the supervision of the Federal Courts. He (Mr. K.) thought the words ought to be retained. The gentleman had alluded to the difficulties which had arisen in Kentucky. But 203 SENATE.] Judicial Process. [JAN. 30, 1828. he considered that those difficulties arose from the fact The Courts, in the performance of their duties, finding He none, were forced to make rules to govern their process. that no such bill as this had been in existence. thought it an error of the gentleman from Kentucky that The gentleman from Kentucky has adopted a mistaken he wished to apply the circumstances of former years to idea in supposing that legislation could be exercised in the present condition of things. What was the object of matters pointed out by the constitution as coming pecu. this bill? It was to make the process of the Federal liarly under the province of the Supreme Court. That This was the Court adopted the State laws as far as was practicable; Courts the same as those of the States. general proposition. It did not give the judges power and they could go no farther. to make or alter process laws; but only the power of modifying them so as to make them consistent, so far as related to forms. He doubted whether any judge since the act of 1789, had undertaken to alter process laws of He hoped the States further than related to the forms. the bill would now be allowed to pass. It was admitted, that in the formation of the Federa! Courts, the best system that the nature of things would allow, had been adopted; they could not have framed a better plan. It could not be done now. desirous that the bill should pass as it committee; as he thought no State had plain of the law as it now stands. He was very came from the reason to com. Mr. ROWAN would detain the Senate but a few mo. Mr. JOHNSON, of Kentucky, made a few remarks in support of the motion of Mr. Rowan. He considered that any measure which should directly or indirectly sustainments. He did not agree with his friend from New York, the power of the judges of the Federal Courts, as now exercised in Kentucky, operated effectually to sanction the principle of tyranny and oppression, which caused the separation of this country from Great Britain. For himself, so help him God! he never would yield to judge or jury, acting under illegal forms, his constitutional rights. Mr. WOODBURY moved to lay the bill on the table, but withdrew his motion at the suggestion of Mr. VAN BUREN, who said that the question ought Six States were now waiting the now to be disposed of. result of the legislation on this subject. This was the second year which this subject had been before Congress, and he was very desirous that its decision should be no longer delayed; and it was quite certain that the bill could be disposed of at once. He as to the necessity of keeping up the present system, or The laws were not made to be unalterable; they were Mr. V. B. then made some remarks in a very low voice, the whole of which were not heard by the reporter. was understood to express regret at being forced into collision with the opinions of a gentleman for whom he The motion offered by the had the highest estimation. gentleman from Tennessee, had proposed to give the legislatures of the States the power of prescribing rules, still preserving the supervision of the Federal Courts. That proposition had been withdrawn, leaving the bill as it originally stood, proposing to put the new States on the same footing with the older branches of the Union. Now, sir, said Mr. V. B., I sincerely regret that an at-injure local interests. tempt should have been made to change the system by a new proposition, the operation of which will be to place the new States on an entirely different footing. And I shall oppose such a measure with as much zeal as is shewn by the gentleman from Kentucky, in its advocacy. I have heretofore spoken of the difficulties experienced by those who first regulated the judiciary of the country. They were obliged to observe the various powers of the States-and they had therefore to avoid any measure which should change or infringe the then existing laws of each member of the Union. They could not do away the State laws, and it would be recollected that many of the then existing laws threw important obstacles in the way of the Federal Courts growing out of the English They therelaws from which they had been adopted. fore took the laws of the States as they found them, and upon that multifarious basis, built up the Federal judiciary of the country. In one, two, or perhaps three instances only, had any difficulty occurred between the In Kentucky the State powers and the Federal Courts. ferment that at one time existed, had happily been quieted. The only difficulty in that State had been that the rules of court originated with the Federal Court, instead of emanating, as they should have done, from the State legislature, subject to the supervision of the Federal But, said Mr. V. B., I think my friend from Judges. It appears to me that it was Kentucky is in the wrong the duty of the State legislature to have adopted rules; and if they did not establish them, it was their own fault. Feeling the kindness and courtesy of the gentleman from New York, and fully reciprocating the respect and esteem which that gentleman had expressed toward him, Mr. R. regretted that they should differ so widely. The gentleman from Illinois would excuse him for delaying the present consideration of the bill, by moving to lay it on the table, in order to give time for its full investiga tion. He would barely remark, in conclusion, that his object was not precisely the same as that of the gentle. man from Tennessee [Mr. WHITE] but was enlarged so as to embrace all of the States. The bill was then ordered to lie on the table. JAN. 30, 1828.] Surviving Officers of the Revolution. SURVIVING OFFICERS OF THE REVOLUTION. The bill for the relief of certain surviving Officers of the Revolutionary Army was then again taken up for conEderation. In support of this bill, Mr. BERRIEN addressed the Senate as follows: I have, said he, hitherto abstained from taking any part in this debate. Having satisfied myself that the memorialsts have a claim on the justice of this Government, founded on the most rigorous legal principles that can be invoked for the decision of questions of private right, sustained and enforced, if such support were necessary, by that high and ennobling feeling of gratitude for meritorious service, which ought to distinguish us as a nation, and which, as individuals, we should be proud to cherish: baving listened to the very lucid and impressive exposition of the subject, which has been given by the Chair man of the Committee, I have not heretofore permitted myself to believe, that this measure was fated to encounter the opposition by which it has been recently assailed. Even now, when under the influence of feelings thus called into exercise, and yielding to the wishes of my associates, I present myself to the notice of the Senate, I eatreat gentlemen to believe, that it is in the discharge of my duty, as a member of the Committee, that I am induced to make even this brief trespass on their time. I owe it to myself to make one preliminary remark. Educated in feelings of deep and habitual reverence for those illustrious men, by whose exertions, under Providence, this great Republic was ushered into existence, I have nevertheless silenced their suggestions, in the decision of this question. I came to its consideration with a perfect and unchangeable conviction, that, to entitle these memorialists to the allowance of their claim, it was ecessary to do something more than merely make out a ase, which should appeal to the gratitude of the Amerian People, however meritorious and brilliant the servies on which that appeal was founded. The claim was pon the Public Treasury of that People, preferred to gents of limited authority, who must allow or reject it, the exercise of their constitutional functions, not uner the influence of individual feeling. I presume not › question the motives of any Senator, who may differ om me, when I say, that we are not the almoners of the merican People, the dispensers of their charity, but gents, with limited powers, entrusted with the control the public purse, for the sole purpose of applying it the current exigencies of the Government, in the adancement of great principles of public policy connectwith the exercise of powers substantively conferred pon us, and in the discharge of individual claims arisg from our own, or the engagements of our predeces. ors. I am very well aware, that this limited construcon of our powers will often be productive of embarassment; that many cases will arise, in which my feelings il strongly urge a more extended interpretation. In y view, however, it is forbidden, by considerations gher even than charity, by considerations of fealty to he Constitution, which we have sworn to preserve. If I em, then, on this occasion, it is from my incapacity estimate a claim of mere right, to determine an ordiy question of meum and tuum, on the principles of at science, to which I have devoted (negligently, if you , Sir, but still with some little ardor, however tran(,) the best years of my life. Why should I repress e expression of the feeling which rises unbidden to my ps The proudest privilege which that profession has accorded to me, is that which I this day enjoy, of dicating, on this floor, under the clearest convictions of judgment, the claim of these gallant veterans upon justice of the country. the formation of my opinion on this subject, I have scluded every consideration of the character of the serct on which this claim is founded, of the individual or [SENATE. collective merits of those who performed it. For all the purposes of this inqui y, that question is res judicata. It has passed into judgment by the decision of our predecessors, in the Congress of 1780, and 1783. The claim is of record, and the single question for our determina. tion, is, whether it has been discharged. While, however, in order to exclude from this inquiry every consideration which does not legitimately belong to it, I abstain from speaking of the character of the ser vice, which it is the object of this bill to compensate, with any view to invoke your gratitude in aid of your justice, I cannot listen in silence to observations, of which the tendency, however unintentional, is to diminish the just estimate of its value. I present this as a claim of right, resting in contract, and having the character of an express conventional obligation. But, if gentlemen will look behind that contract, to the consideration on which it is founded, for the purpose of instituting an unfavorable comparison between these memorialists, and those of their companions in arms, although I cannot be tempted to say aught which may detract from the merits of the latter, it is my right, it is my duty, to defend those who have defended us; to rescue from all unfriendly judg ment, the hard earned reputation of those gallant men, who breasted the storm in the perilous struggle of our Revolutionary conflict. If I could shrink from the performance of such a duty, I should be faithless to the best and purest feelings of my heart. That eye is forever dimmed, whose living, indignant gaze, I could not brook, if I were thus recreant from the claims of nature and affection. Sir, is it at this day a question, whether those gallant men, whom Washington so often led to victory and renown, with whom he so often shared privations and sufferings, infinitely more trying to the spirit of the soldier, than danger in its most appalling form; is it at this day, a question, whether they have or have not deserved all that a grateful country can bestow? Fifty years have rolled on amid the annual recitals of their achievements, while they themselves have, for the most part, passed away, leaving to us the rich legacy of their heroic deeds. Sir, the reputation of the Revolutionary patriot is the moral treasure of the nation. In ages yet to come, it will constitute that nation's strength. I repeat the declaration, I do not found the claim which I am now advocating before you, on the consideration that it was dearly, nobly won. I do not assume for these memorialists any pre-eminence of merit over their companions in arms, or their fellow-laborers in the councils of that dark and trying hour. I can turn with an enthusi asm as glowing as that of my respected friend on my left, to the brilliant scenes of Bunker's Hill, of Bennington, and of King's Mountain; to those illustrious men, who led our militia to victory in many a stormy fight; ay, and to the militia themselves, whose individual valor has often snatched victory form the disciplined phalanx which op posed them. I can deplore the mutability of fortune, which the victor of Burgoyne was destined to experience on the plains of Camden. But, I am a Southern man; and need I remind him that some of the most brilliant scenes of our Revolutionary strife were exhibited in the campaign of the Carolinas, under the auspices of Green, emphatical ly denominated the second savior of his country? Sir, while I cheerfully accord the meed of merited praise to Sumpter, and Marion, and Pickens, I cannot forget that Wayne, and Lee, and Howard, and Williams, and Morgan, and Moultrie, and a host of other worthies of the regular army, were foremost in the struggle of Southern strife. But, why this unprofitable comparison, between the merits of the regular army and the militia, in the war of the Revolution? Why disturb the repose of the tomb, or mantle the cheek of the survivors with the glow of honest indignation? The reputation of both is the com mon property of the country. Is it our interest to diminish either? The effort would be as gratuitous as it would be unwelcome and unjust. I will proceed to state, as briefly as I may, the legal view which I have of this claim. In May, 1778, Congress passed a resolution promising to give seven years' half-pay to officers, who were then in the army, and should so continue until the end of the war. In October, 1780, they resolved that all officers, who should continue in service until the end of the war, should be entitled to half-pay during life, to commence from the time of the reduction. Here, for a moment, let us pause. The present me. morialists were embraced in these resolutions. They were officers of the American army, and served with fidelity until the close of the war. With them, these resolutions, that of 1780, particularly, constitute a contract, a promise that they should receive half their regular pay, during their lives, on the performance by them of the stipulated condition. That condition they have performed, and the contract has become absolute on the part of the Govern ment. The single question for our inquiry is, Has it been fulfilled? Unless this can be affirmed, its obligation remains, however successfully you may resist its enforce ment, by applying the statute of limitations as a bar to the remedy, or by the exercise, for any other cause, of your power to refuse this application. [JAN. 30, 18 cause, after the period limited for their acceptance, within which time it is not pretended that they were cepted, they ceased to be obligatory on the Governme and reciprocity of obligation is of the very essence of su a contract. 2. That there was no acceptance of these prop tions by these memorialists at any time-and 3. That the receipt by the memorialists of the cert cates issued in 1784, cannot be pleaded in discharge the contract of 1780. Let us look very briefly at this subject in the first vie The resolution of 1783, which proposed the allowance five years' full pay, instead of the half pay due by original contract, expressly subjected it to this conditi that the election of the officers to accept it, should, the manner specified in the resolution, "be signified "Congress through the Commander in Chief, from t "lines ander his immediate command, within two mont "and through the Commanding Officer of the Southe Army, within 6 months from the date of the resolution It is unnecessary to enter into details upon this point. suffices to state, generally, what is, on all hands, admitte that the condition attached to the offer contained in t resolution of 1783, was not, in fact, performed by the to whom the offer was made, within the time prescribe At the expiration of that time, it ceased to be obligato Has this contract been fulfilled? How-in what man- upon the Government. The contract between the pa ner has it been fulfilled? In March, 1783, Congress re-ties was in precisely the same condition as if the resol solved that these officers should be entitled to receive five tion of 1783 had never been passed, and consequently years' full pay, in money or securities, at six per cent. per contract founded on the resolution of 1780 was in fu annum, as Congress should find most convenient, instead force and operation. An ineffectual attempt had be of the half-pay for life, promised by the resolution of Oc made to substitute for the original contract one, t tober, 1780, under certain provisions to which I will here. terms of which were specified in the resolution of 1783after advert more particularly. The confederated Govern- but the failure to accept those terms in the manner, an ment was then without funds, and without the means of within the time prescribed in the offer, necessarily pr raising them otherwise than by the contributions of the vented its consummation. No legal obligation could at States. Nevertheless, the certificates were issued to the tach to the party making the offer, because of the failure o'l cers, in 1784, for the amount of this commutation and of the party to whom it was made to accept it, according their arrears of pay, and as well in that year as in 1783, to the specified terms. Each party was therefore remi Congress resolved that requisitions should be made on ted to his rights as they existed anterior to this unsucces the several States, to provide funds for the discharge of ful attempt to modify them. I submit to my profe the demands of the army. But, these requisitions were sional associates on this floor, whether this would not b not complied with by the States. The inevitable conse- the legal effect of such a state of things between indiv quence was, that the certificates fell to about one-tenth of duals; and to all, the inquiry, whether this Governme their nominal value, and at this depreciated rate, the ne- can, with propriety, absolve itself from the obligation cessities of the officers compelled them for the most part, those principles, which, through its judicial departmen to dispose of them. Then came the funding act of 1790. it would enforce in transactions between its citizens. The arrears of interest were funded at three per cent. instead of six, and payment of one-third of the principal was deferred for ten years, without interest. Upon this state of facts, my proposition is, that the original contract of October, 1780, is still subsisting and obligatory upon the Government; that payments made under the resolution of 1783 are applicable to it as credits, but cannot be pleaded in discharge. Those who deny the continued subsisting obligation of this contract, must affirm one of two things. Either that the resolution of 1783 became obligatory upon these me. morialists, by their acceptance of it, as a substitution for the contract of 1780, and by the performance on that part of the Government, of its stipulations; or that the certifi. cates issued and received in 1781, were, of themselves, and independently of the resolution of 1783, a sufficient satisfaction of the contract of 1780. The latter ground has not been taken by the opponents of this bill. It is too obviously indefensible to be maintained. It will suffice, therefore, to direct our attention to the inquiry, whether the resolution of 1783, and the subsequent transactions between the parties, are sufficient to discharge the con I maintain, then, that, on the failure to accept the offe made by the Government in 1783, on the terms, and with in the time prescribed, the resolution containing that o fer became functus officio; that the original contract be tween the parties still subsisted, unaffected by this unsuc cessful attempt to agree upon a substitute; and that a subsequent transactions between them, in the absence express individual stipulation, are necessarily referrible t this as the only subsisting contract. I have said that there was no acceptance of the offe contained in the resolution of 1783, within the time pre scribed for its acceptance, and, consequently, that it was not binding upon the Government; and if not binding upon the party making the tender, certainly not so upor the party to whom the tender was made, since reciprocity of obligation was of the essence of such a contract. now assert, that the acceptance of this offer by those whom it was addressed, within the time, and in the ver terms specified in the resolution, would not have operat ed as a legal bar to the claims of these memorialists. The contract entered into by the United States with the officers of the Revolutionary Army, the terms of which are set forth in the resolution of October, 1780, was a con tract with the several individuals described in that resolu 1. That the propositions contained in the resolution of tion, which gave to each of them an individual right to 1783, never were obligatory on these memorialists, be-half pay during life-of which right he could only be de tract which it created? On this subject, I maintain these positions: |