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surviving officers and soldiers of the army of the Revolution," it has been he practice of your department to deduct the amount of any and every pension that an officer had received since the 3d March, 1826, from the pay hat he was otherwise entitled to receive under the 1st section of the act; ind this act having been amended by an act for that purpose approved on he 31st May last, you ask my opinion whether the last-mentioned act will authorize the repayment of the invalid pension which may have been so leducted under the act first referred to.

You desire me, moreover, to state whether, in my opinion, the act of the 31st May, 1830, extends the benefits of the act of the 15th May, 1828, to soldiers who, being on the invalidspension list, were excluded by the third section of that act.

In answer to your first inquiry, I have to state that the provisions of the act of the 31st May, 1830, are altogether prospective. It declares that the act of the 15th May, 1828, “ shall not be construed to embrace invalid penzioners ;" that “the pension of invalid soldiers shall not be deducted from he amount receivable by them under the said act." These enactments perate in futuro. They prescribe a rule which is to be applied to cases rhich may occur after their date; but do not relate to the past, or give any authority to re open accounts which may have been theretofore settled. They require the department to abstain from making such deductions hereafter, but do not authorize the payment of such as have been made

In reply to your second inquiry, I have to remark, that the force of the ct of the 31st May, 1830, seems to be directed against the 2d section of le act of the 15th May, 1828; which is confined to the surviving officers f the army of the Revolution, in the continental line, entitled to halfay," &c., and does not extend to the non-commissioned officers, musicians, { privates of that army. The first-mentioned act (that of the 31st May, 830) does, indeed, contain a provision in relation to the pension of “invad soldiers," but when the nature of that provision is considered, it will e seen to relate only to the persons provided for in the 2d section of the it of the 15th May, 1828–that is, officers of the army of the Revolution ititled to half-pay—for none others had pensions which were liable to be ducted from the amount receivable under that act. If it had been intended to extend the benefit of the act of the 15th May, 328

, to soldiers, who, being on the invalid.pension list, were therefore exuded by the 38 section of that act, it would have been enacted—that the oviso of that section shall not be construed to extend to invalid soldiers, hether non-commissioned officers, musicians, or privates, who may be on le pension list; but such invalid soldiers shall, notwithstanding, be entitled the benefits of said act.




June 19, 1830. Sır: In answer to the inquiry contained in your note of yesterday, I ave to state that "the sanction of the late Secretary of the Navy, as ex. bited in his letter of the 20th May, 1830, and the letter of the late Fourth

Auditor, dated 16th February, 1829," do not, in my opinion," make it the duty" of the Second. Comptroller" to pass the amount of the claim to the credit of Purser Clarke."

It was the duty of the late Fourth Auditor to receive and audit the ac: count of Purser Clarke. Having done this, the law required him to certify the balance to the Second Comptroller for his decision, and to transmit the accounts with the vouchers and certificate. It then became the duty of the last mentioned officer to examine this account, and to certify the balance to the Secretary of the Navy. Until this is done, the proceedings are in fierinothing is concluded ; and even then, it is open to the controlling power of the Secretary, as the head of the department.

Purser Clarke's account appears noi to have been settled at all by the late Fourth Auditor. He had never certified the balance to the late Second Comptroller for his decision, nor had that officer acted upon it. In the course of correspondence with Purser Clarke, the late Fourth Auditor had indeed informed him that the particular claim which is the subject of the present inquiry would be allowed ; but he had not, in point of fact, allowed it, by passing it to his credit, and certifying the account thus stated to the Second Comptroller for his decision. A leiter from the late Secretary of the Navy, under date of the 20th May, 1830, is exhibited; which goes into a detail of circumstances calculated to show that the claim under consideration was allowed by him while in office. I do nút object to the form in which this is presented. The Auditor may receive and consider it, or, if he thinks it necessary, may have it verified. But it seems to me, in general, an unsafe rule to recognise any other evidence of official acts except the records of the department. If the sanction of the late Secretary was, in fact, given to this claim; to make it effectual, it was necessary that the Fourth Auditor should have stated the account accordingly, and have cerlified it to the Second Comptroller, from whom it should have passed to the Secretary, and, when finally adjusted, to the Fourth Auditor for safekeep ing: Until this was done, there was a locus pænitentiæ. The written of verbal direction of the Secretary might have been recalled, if, on farther reflection, he had considered it erroneous. This discretion, the right to exercise which he retained as long as the account remained unsettled, ceased only (as that was never done) with the termination of his official functions, and passed consequently to his successor.

I have abstained from saying any thing concerning the merits of the claim, not considering the question of its validity as involved in your inquiry. The papers are returned.



June 29, 1830. Sir: The 11th article of the rules and articles for the government of the army of the United States declares that no discharge shall be given to : non commissioned officer or soldier, before his term of service has expired, but by order of the President, the Secretary of War, the commanding officer of a department, or the sentence of a general court-martial.

The act of the 15th May, 1820, provides that seamen, ordinary seamet

nd boys, may be enlisted for a period not exceeding three years. The act f the 31st Jannary, 1809, which authorized an additional naval force, reuired that the seamen, &c., should be engaged to serve for a period not xceeding two years, with power to the President to discharge them sooner, in his judgment, their service might be dispensed with. The act of the 3d March, 1809, directs enlistments in the marine corps

be for five years, unless sooner discharged; but does not provide by hom such discharge shall be granted. It is with these very imperfect lights, and in the absence of all informa. on as to the usage in this regard, except what I may derive from the letter f Colonel Henderson, that I am now to form and express an opinion on he points which you have presented to me.

By the provisions of the act for the establishment and organization of he marine corps, it is subjected to the rules and articles of war prescribed or the military establishment of the United States, or to the rules for the egulation of the navy, according to the nature of the service in which it ay be employed. I have heretofore expressed an opinion that this corps as more assimilated to the army proper, than to the naval branch of our military establishment; and in relation to the present inquiry, it seenis 10 e it must be so considered. I find, too, that the commandant, Lieutenant olonel Henderson, rests the authority which he claims, of granting dis. harges, under peculiar circumstances, to marines whose term of service as not expired, on the 11th article of the rules and articles of war.

I will repeat the provisions of that article: it provides that "no disharge shall be given to a non-commissioned officer or soldier, before his rm of service has expired, but by order of the President, the Secretary of ar, the commanding officer of a department, or the sentence of a general urt-martial.” Now, the lieutenant colonel commandant of the marine orps cannot be brought within this description of persons anthorized to rant discharges. He is not the commanding officer of a department;" r that is a technical expression, interpreted, in the army regulations, to esignate the geographical limits which separate the grand divisions of the my of the United States. Nor can he acquire the right to grant such scharges by virtue of his office as commandant of the corps; for the thority to rescind a contract between the United States and the indi. dual, which is the effect of the discharge, is a power which can exist only by virtue of an express grant: it is not dependent on rank, but simply n the provisions of the law. Under the article which we are now consid. Fing, the major general commanding the army of the United States cannot tant a discharge, which may be granted by his inferior officer, who chances be in command of a department. I am, then, of opinion, that it is not competent to the lieutenant colonel ommanding the marine corps to grant discharges to marines before the spiration of their term of enlistment; and that, until Congress shall otherise provide, such discharges can only be granted by the President of the nited States, or in conformity to such regulations as he may think proper prescribe.



June 4, 1830. GENTLEMEN : Your letter of the Ist instant has been duly received. Re ferring to the contrariety of practice which has prevailed on the subject of warrants for the execution of the sentences of the courts of the United States in capital cases, you state that you have thought it advisable, in te lation to the cases depending before you, to ask the sentiments of the Presi: dent on the question ; and express a desire to know whether it is his pleasure to issue the warrants of execution, announcing, at the same time, tha: should he not do so, you would consider the duty as referred to you, and would proceed to its performance.

In reply, I have the honor to state that your communication, with the record of the conviction, has been submitted to the President; and that I am instructed by him to inform you that he has, after mature deliberation, de termined in all cases to leave the execution of the sentence of the law the direction of the court, in full confidence that the courts will give a reasonable time for the interposition of executive clemency in cases where is ought to be interposed. I have the honor to be, very respectfully, gentlemen, your obedient servant

JN. MACPHERSON BERRIEN To the Hon. Henry Baldwin and Joseph HOPKINSON,

Judges of the Circuit Court United States.


June 28, 1830. Sır: The question which you propose to me is, whether a transfer by exchange can legally be made between Lieutenants Burke and Smith-th former of the second regiment of artillery, the latter of the marine corps It is understood that the commissions of these officers are of equal date, an that this transfer by exchange is desired by them.

The only legal provision which I find on this subject, is that containe in the 63d article of the rules and articles for the government of the arme of the United States ; by which it is declared that engineers "are liablet be transferred, at the discretion of the President, from one corps to another regard being had to rank.”'

The army regulations approved in January, 1820, recognise the right ¢ the War Department to make transfers of officers, by declaring that sucl transfers will only be made by that department, in general orders, on th mutual application of the parties, except in cases provided for by law; an by forbidding the transfer of an officer to a regiment, to the prejudice the rank of any officer thereof. These regulations derive their force from the act of April 24, 1816, and from the approval of the President of thi United States.

The transfer by exchange, at the instance of the officers transferred, ba then, the sanction of custom, recognised in the regulations of the army. seems, moreover, perfectly reasonable that there should exist somewhere power to effect such transfers, when the good of the service may appear i require it.

Can any difficulty arise in this case, from the fact that one of the partie belongs to the artillery, which is part of the army proper, and the other 11

he marine corps ? Is the power to be confined in its exercise to the army vroper, and restricted to exchanges between the officers of that branch of he military establishment? It may, and probably must, be so restricted, if xerted in the mode prescribed by the army regulations to which we have eferred—that is, by the mere volition of the President. But no good reason s perceived why, in the exercise by the competent authority of a sound disretion, it inay not be co extensive with the whole military establishment of the United States. Even if this were not so, it would seem that it might very properly be made to extend to the marine corps. Admitting that this part of the military establishment is in many respects anomalous, attached both to the army proper and to the naval armament of the United States, and yet incorporated with neither, but rather sui generis-still I apprehend that, for all the purposes of the present inquiry, it is much more analogous to the former. Having heretofore had occasion to consider this particular branch of the subject, I send you an extract from an opinion some time since submitted to the President of the United States, as illustrative of my views in relation to it.

I think that there is no legal objection to the transfer of officers from the Artillery to the marine corps, or the converse, arising from the character of the corps to which they respectively belong: that, attached as they are to a common service--that is, to the military establishment of the United States—and freely consenting to an exchange, such transfer may be justly made by the competent authority ; care being taken not to prejudice the tank of any officer of the regiment to which the transfer is made.

But what authority is competent for this purpose? Can the War Department legally make such transfer by a general order issued in the terms of the regulation which has been referred to? In other words, is it competent to he President, ex mero motu, to give to an officer of marines rank in the artilery, and the converse ? I apprehend not. The authority is given to him in the case of engineers, by the rules and articles for the government of the army; and as relates to the army proper, by the regulation. But it cannot xtend to the inarine corps ; because the act of 1916, on the authority of which that regulation is founded, is confined to the army-to "the military peace establishment of the United States ;" which it declares shall consist of artillery, in fantry, riflemen, and engineers, without including marines. While

, therefore, I believe that ihere exists a right of transfer from the marine corps to the other branches of the military service of the United States

, and vice versa; yet, as no mode is prescribed by law, or regulation ander the authority of law, in which such transfer can be effected, it seems to me that it can only be accomplished by an exercise of the appointing

Consider the nature of the act to be done: it is to appoint Thomas Burke o a lieutenancy in the marine corps, and Constantine Smith to a lieutenancy in the artillery, on the condition that they shall severally surrender The commissions which they hold in these corps respectively. This is the practical effect of the exchange; which can, therefore, in my opinion, only be \cconsplished by the action of the appointing power-that is, by the Presilent, by and with the advice and consent of the Senate. The President, as Commander-in-chief, having satisfied himself that the exchange is consistent with the good of the service, and that the officers to be transferred have respectively

assented to it, will then take care not to prejudice the rank of any officer of the regiment to which the transfer is made, by nomi


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