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Norfolk, December 5, 1814. Sir: In February last, a commission of letter of marque and reprisal issued from this office for the “ Four Friends,” a schooner belonging to Messrs. Butler & Seymour, merchants of this place. The vessel, it appears, was afterwards sold, and, as is stated by one of those gentlemen, the cornmission retained by the Spanish authority there : the reason hé alleges for its not being returned. In proof of which, a certificate, purporting to be from an officer of that Government, has been produced, but without any seal or other marks that could be discovered giving it any official character. Information derived from another source leads me to believe that this vessel has since been employed by her new owners (Carthagenians, it is presumed,). as a cruiser under cover of this commission and of the American flag. What contributes very much to strengthen this opinion is, that it appears the commander named in the commission was acting as such-subsequently to the sale. I have deemed it my duty to represent this case to you, in order that I may be instructed what steps, if any, it will be proper to adopt. It is a case which does not seem to be embraced by the conditions of the bond required to be given prerious to the emanation of the commission, unless that be revoked. I have the honor to be, most respectfully, your obedient servant,
CHAS. R. MALLORY. Hon. JAMES MONROE,
Acting Secretary of State.
DECEMBER 26, 1814. If there is reason to suppose that the commission of the letter of marque within named was intentionally transferred, I think it such an abuse of it as would justify the bond being put in suit. But if it were forcibly detained by the Spanish authority, the owners or captain ought not to be visited by such responsibility. If a Spanish vessel' should cruise under a commission so assigned, it would be at her peril.
R. RUSH. To the SECRETARY OF STATE.
WASHINGTON, April 4, 1815. Assuming it as fact, under the letter from the register of Shawneetown, dated March 11, 1815, that the intruders in question are utterly without title; that their unlawful possession was subsequent to the 3d of March, 1807, and previous to any sale made by the United States of the lands entered upon, I am of opinion:
That such intruders should be dispossessed by the authority of the Government, in the manner pointed out in the 1st and 4th sections of the act of Congress of the 3d of March, 1807. The three months' notice mentioned in the 4th section will not be necessary, as it applies to another class of intruders.
If the instructions which are issued in the first instance to the marshall
, or officer acting as such, are not found available to oust them from the land, and the marshal, upon trial, fails to effect that end, it is clear that
the President may direct the employment of such military force as he may deem adequate and necessary to its accomplishment.
WASHINGTON, April 6, 1615. The Secretary of War having, in a letter of the 4th instant, desired my opinion on the true meaning of the first clause of the 14th section of the act of Congress passed on the 16th of March, 1802, for fixing the military peace-establishment, I have the honor to submit the following:
The words of the clause are: “That, if any officer, non-commissioned officer, musician, or private, in the corps composing the peace-establishment, shall be disabled by wounds or otherwise while in the line of his duty in public service, he shall be placed on the list of invalids of the United States, at such rate of pay, and under such regulations, as may be directed by the President of the United States for the time being."
The question made is, in what other way than by wounds must the disability have been incurred, to entitle the party to the pay provided ?
The words of the section are not quite so distinct as to remove all grounds for diversity of opinion ; yet, unless some liberality in their interpretation be allowed, it is to be feared that the benignant intentions of the law might be in danger of being curtailed or frustrated. The expression “ or otherwise" is placed in contradistinction to wounds. In its primary signification, it may be taken to import a disability brought on by the direct and apparent agency of accidents or inflictions from the hand of God or men, happening to the party while in the immediate and obvious discharge of his duty, but which could not, with technical propriety, be denominated wounds. Instances of the kind may readily be conceived ;as if an officer, exercising his men on a hot day, should receive a stroke of the sun; a musician, while obeying an order to sound his bugle, should rupture a blood-vessel; or a soldier, while working upon fortifications, should dislocate a limb: in such, and similar cases that may be imagined, it cannot be doubted but that the disability would be brought on in a mode to meet the alternative stated in the act. It will be to enlarge it but a little more, and, as is conceived, to uphold its genuine and humane spirit, as well as its legal sense, to say that the connexion between the inflicting agent and consequent disability need not always be so direct and instantaneous. It will be enough if it be derivative, and the disability be plainly, though remotely, the incident and result of the military profession. Such are the changes and uncertainties of the military lifesuch oftentimes its trials, as well as its hazards—that the seeds of disease, which finally prostrate the constitution, may have been hidden as they were sown, and thus be in danger of not being recognised as first causes of disability in a meritorious claim put forth for the bounty of the act. It would not, I think, be going too far to say, that, in every case where an officer or private loses his health while in the service, to such a degree as to be disabled from performing his duty any more, he is.contemplated, prima facie, as an object of this charitable relief from the Legislature. I feel more doubtful in fixing, by any undeviating standard, what is meant by being in the line of his duty. Upon this point, I should presume,
however, that every officer in full commission, and not on furlough, must be considered in the line of his duty, although, at the moment, no pardicular or active employment is devolved upon him. The same of a soldier who is kept in pay; for it is presupposed of both the one and the Other that they are at all times prepared for duty; and it is surely of indispensable obligation upon them to keep themselves detached from other pursuits
, so as to be ready at a moment to answer any call emanating from those who may be authorized to command them. Perhaps a voluntary absence, too long continued, on the part of an officer from his station, right form an exception, so as to exclude the idea of his being in the line of his duty during any accident or sickness palpably proceeding from causes while he was away. But the officer who, by reason of marches in damp or cold weather, or who, from being in a garrison exposed to marshy exhalations, finds, even at some interval, his constitution broken down by rheumatism, or enfeebled by the constant recurrence of fevers, is surely as just an object of this humane stipend at the hands of the Government, as he who may have had his arm shattered by a bullet. Such cases are again put only as examples. Others may also be supposed, in which the performance of military duty, in some of the various shapes it may be made to assume, has proved the original, though it may not be admitted as the proximate, cause of the disability superinduced.
In the discretion which is vested in the President, a sufficient guard is established that an interpretation of the act, such as is indicated by the foregoing remarks, will not open the way to abuse. If the loss of health should have proceeded from careless or irregular habits in the partymuch more if from vicious ones; or if he brought to the service or ranks of his country a constitution already impaired, or rankling with the germ of maladies that afterwards do nothing more than ripen into activity ;these will form occasions for caution, or for an entire exclusion from the bounty, when the executive duty comes to be performed in the way Congress have pointed out. A claimant who was suspected not to stand in lights altogether meritorious or innocent, must expect that his application would meet a severe scrutiny and certain rejection at the discovery of any thing that could taint it with unfairness or imposition. But if the sound construction be not at least as broad as I have supposed, we shall be at some loss to know what meaning the words “ inferior disabilities,” used in the concluding sentence of the 14th section, were intended to convey.
It may, perhaps, be said, that to earn the bounty, the disability should have been incurred by accidents or sickness peculiar to the employments of military men, and such as it may reasonably be supposed would have been avoided in other occupations. But it is conceived that this would prove a vague or deceptious rule of interpretation. With what safety, or with what certainty, could it be applied ? The soldier asleep in garrison may suddenly, when he wakes, find his eyesight gone, without being sensible himself, or without its being imagined by others, that the predis posing and leading cause of his affliction was imbibed in ascending the Mississippi months before, whilst a hot and vertical sun was Aashing its : fires around him. Another may linger in a consumption; the consequence, perhaps, of a slight cold in the beginning, but of which the labors and hardships of his life may never have allowed him opportunity to get rid. And a third may lie bedridden under a palsy, which the change of habits and aliment after his enlistment may have been the chief though
occult causes in producing. It would be easy to multiply indefinitely such illustrations, applicable alike to the condition of officers and men.
I would remark, as giving strength to the principles which I suppose the Legislature to have had in mind in framing this section, that we find it recorded in the Digest of Justinian, that he who has hired his services is to receive his reward for the whole time, if it has not been his fault that the service has not been performed.” So, too, by the maritime law, it is well understood, that if sickness or disability overtake a seaman, which was not brought on by vicious or unjustifiable conduct, he is entitled to his full wages for the voyage. Nor does it make any difference whether it come on during the time he was on actual duty, or was merely accidental while he continued in the service. These principles have been sanctioned by time; and it is hoped that it will not have been deemed out of place to advert to the analogies they hold up.
Attorney General To the SECRETARY OF WAR.
Questions stated by the War Department for the opinion of the Attorney
WASHINGTON, August 1, 1815. 1. Are persons enlisted since the 10th of December, 1814, entitled to their land warrants for the additional bounty, in the same manner as those enlisted prior to that period ?
2. Are minors, regularly enlisted, entitled to their land warrants ?
1. I think that every non-commissioned officer and soldier enlisted since the 10th of December, 1814, is entitled to a bounty of 320 acres of land, provided that he obtain, on his discharge from service, a certificate from the commanding officer of his company, battalion, or regiment, that he had faithfully performed his duty whilst in service.
I do not think that the fact of minority creates any incapacity to take the land-bounty, any more than the bounty in money or pay. The contract of the Legislature must be fulfilled in this, as in all other respects
. The minor who brings himself within all the other requisites is, I think, entitled to his land-warrant in like manner with persons of full age.
AUGUST 29, 1816. In answer to the question growing out of the letter from Commodore Patterson to the Secretary of the Navy, dated New Orleans, July 21, 1815, and submitted for my opinion by the Secretary of the Treasury on the 29th instant, I have the honor to state : That if the prosecutions alluded to have reference to persons for alleged acts of piracy committed on
the high seas, or in any place out of the jurisdiction of any particular State, they should take place in the district where the offender is apprehended, or into which he may first be brought. In this case, (that is, where the crime is committed on the high seas, or out of the jurisdiction of any particular State,) I apprehend it would be at the option of the capturing vessel to carry the offender or offenders to such port or district of the United States, for trial, as was thought proper.
But where the capture or seizure takes place for any alleged breach of the revenue laws, the trial should be had in the district within which the seizure was made, or penalty incurred.
Attorney General United States. To the SECRETARY OF THE Navy.
WASHINGTON, September 1, 1815. I have examined the act of Congress of the 3d March, 1813, for the better organization of the general staff of the army of the United States, in connexion with the act of the 3d March, 1815, for fixing the military peace establishment of the United States ; and am of opinion that the brevet commissions which may have been issued under the authority of the former have lost their force, and are no longer of avail to confer either emolument or rank.
WASHINGTON, September 6, 1815. SiR : I have examined the papers relative to the conveyance offered to be made by T. A. Diggs and W. D. Diggs, by deed dated the 31st of August, 1815, of part of the Warburton estate to the United States; and am of opinion, that, in the predicament in which the property now stands, they cannot make a satisfactory title to it.
The question is, not whether the grantors will be able under the general Warranty, to indemnify the United States against any ultimate, loss, (which is probable enough ;) but whether the United States will conclude a contract in disparagement of the rights of a third person, more especially un. der express notice of the existence of such rights. I think that they should not.
The deed of trust of the 24th of December, 1811, passes a life estate in the land in question to Mrs. Jane Fitzgerald, provided she survives Mr. T. A. Diggs. She is not only no party to the conveyance, but declares her dissent; or, at any rate, asserts her right to a portion of the purchase-money:
I see nothing in the allegation of the deed of trust being gratuitous, so far as Mrs. Fitzgerald is concerned, to divest or weaken her claim. It is true the law distinguishes between a good consideration and a valuable oue. But a deed founded upon the former must be taken to be valid until the contrary be shown from some circumstances peculiar to the situation of the grantor. None such appear in this instance.
I think the United States are entitled to ask that the claim of Mrs. Fitzgerald be in some way quieted before they pay the purchase-money.