United States v. Hewitt

• Decision Date: 23 February 1882
• Citation: 11 F. 243
• Parties: UNITED STATES v. HEWITT.
• Court: U.S. District Court — District of New Jersey

11 F. 243

UNITED STATES v. HEWITT.

United States District Court, D. New Jersey.

February 23, 1882

The District Attorney, for the prosecution.

Mr Wescott, Mr. Harned, and Mr. Crandall, for the defence.

NIXON D.J., (charging jury.)

With the legislation of congress to raise and support armies for the suppression of the rebellion against the government of the United States began, also, legislation for the relief of those who were injured, and for the support of the families of those who were killed in the service. As these beneficiaries of the nation were generally from the humbler walks of life, and ignorant, it soon became necessary to enact laws for their protection against a class of men called 'pension agents,' who too often used their position in prosecuting the claims of pensioners to enrich themselves at the expense of the unfortunate persons who were the objects of the bounty of the government. Accordingly, on the fourteenth of July, 1862, an act was passed which made it an indictable offence for an agent or attorney, directly or indirectly, to demand or receive any greater compensation for his services in procuring a pension than $5 for preparing or filing a declaration by the applicant, and $1.50 for any additional affidavits required by the commissioner of pensions, or who shall wrongfully withhold from a pensioner or claimant the whole or any part of the pension or claim allowed or due to such pensioner or claimant. Various other acts were passed from time to time, having the same general objects in view until 1873, when the law now in force was approved, and which stands on the Revised Statutes of the United States, in section 5485, as follows:

'Any agent or attorney, or any other person, instrumental in prosecuting any claim for pension, * * * who shall directly or indirectly contract or demand or receive or retain any greater compensation for his services, or instrumentality in prosecuting a claim for pension, * * * than is provided in the title pertaining to pensions, or who shall wrongfully withhold from a pensioner or claimant the whole or any part of the pension or claim allowed or due such pensioner or claimant, * * * shall be deemed guilty of a high misdemeanor, and upon conviction thereof shall, for every such offence, be fined not exceeding $500, or imprisoned at hard labor not exceeding two years, or both, at the discretion of the court.'

That is the section under which this defendant was indicted. As it was passed in 1873, you observe in the first part of the section this provision: 'that any attorney or agent who shall directly or indirectly contract or demand or receive or retain any greater compensation for his services in prosecuting a claim for pension than is provided in the title pertaining to pensions, shall be guilty,' etc. This has reference to a section then standing under the head of pensions, to-wit, section 4785. The limit of the charge to be made for services (not, I suppose, including necessary actual expenses) was then found in section 4785 of the Revised Statutes, which declares that no agent or attorney shall demand or receive any other compensation for his services in prosecuting a claim for a pension than such as the commissioner of pensions shall direct to be paid to him, not exceeding $25. The law thus stood until June 20, 1878, when another act was approved limiting the charge for services in pension cases to $10, and expressly repealing section 4785. The repeal of this section having created a difference of opinion in the courts as to whether an indictment could be maintained under this clause of section 5485, which forbids a greater compensation than was provided for in the title of the Revised Statutes pertaining to pensions, congress put the question at rest by enacting on the third of March, 1881, that the provisions of section 5485 should be applicable to any person who violates the provisions of 'the act relating to claim agents and attorneys in pension cases,' approved June 20, 1878. This legislation is not without its difficulties, and the proper construction of the pension laws between June 20, 1878, and March 3, 1881, is obscure. The offence charged against this defendant in the first count of the indictment was committed, if at all, between these dates; and it is doubtful whether there existed in the title of the Revised Statutes pertaining to pensions during that time any provision limiting the fee which any agent or attorney might lawfully demand or receive for his services.

The statute is a penal one and must be construed strictly. The defendant is entitled to the benefit of all doubts, and I must therefore hold that there can be no conviction under the first count of the indictment.

You will then, gentlemen, dismiss from your consideration the question of the guilt or innocence of the defendant under the first count, and turn your attention to the second count.

The second count substantially charges that the defendant, being the attorney of Benjamin Barnes in prosecuting a certain claim of said Benjamin for a pension under the laws of the United States in pursuance of pension certificate No 166,663, issued to said Benjamin, and having received from the United States the pension money allowed to and due to said pensioner to the amount of $1,610.73, did wrongfully withhold from the said Benjamin a large part of said...