Even, therefore, had the engagement of the United States been positive to grant to the State of Alabama the sixteenth section, I should hold, in the case which had actually occurred, that the claimants under the treaty could not be affected by it.

But the agreement is not exclusively confined to that section. It contemplates the contingency of that section being otherwise disposed of, and makes provision for such an event. So far as that part of the Territory which was occupied in 1819 by the Choctaw Indians is concerned, I think the words "and when such section has been sold, granted, or disposed of," must be considered as applicable to the state of things which should exist when the Indian title should come to be extinguished; and the sixteenth section, if claimed by an Indian reservee under the Choctaw treaty, will have been "disposed of" within the meaning of the original proposition; and in that case it is expressly provided that other equivalent and contiguous lands are to be granted.

I do not find any special provision relative to the sixteenth section in the acts concerning the State of Mississippi.

I have the honor to be, very respectfully, your obedient servant,
B. F. BUTLER.

Hon. LEVI WOODBURY.

PENSIONS-CONSTRUCTION OF ACT OF MAY 15, 1820.

The accuracy of the construction given by Mr. Wirt to the act of the 15th May, 1820, to revive and continue in force an act to provide for persons who were disabled by known wounds received in the revolutionary war, and for other purposes, is doubted.

Under the peculiar circumstances in which the applicant was placed, the law was not applica ble to his case.

The regulation restricting the commencement of pensions to the time when the papers shall be authenticated, is repugnant to the act of 1820.

ATTORNEY GENERAL'S OFFICE,
March 31, 1836.

SIR: I have had the honor to receive your communication of the 2d instant, submitting for my opinion certain questions presented in a report from the Commissioner of Pensions, in relation to a pension claimed by General Ripley.

It appears, from the document referred to me, that in September, 1829, General Ripley applied to your department for a pension on account of disability arising from a severe wound which he received, while in the ser vice, on the 17th of September, 1814; and that he claimed pay from the time the wound was received. His claim for back pay was not admitted by the Secretary of War, on the ground that the second section of the act of the 15th of May, 1820, applied to the case, and limited the commence ment of the pension to the time when the testimony was completed. In 1831, General Ripley again made application to the department; but a pension was not granted, because the surgeon's affidavit was defective, in not being sufficiently clear in stating the disability, and in not having the necessary authentication. A letter containing the objections was address ed to the claimant on the 9th of March, 1831. In December last, appli cation was again made, and the claim allowed, (there being then no ob jection to the evidence,) to commence on the 21st of November, 1835.

who

The pension certificate was, however, returned by General Ripley, again urged his claim for pay from the 17th of September, 1814, on several grounds, stated at length in an argument, which is among the papers referred to me, and in which he asks a decision-first, on the question, whether he is entitled, under the 14th section of the act entitled "An act to raise an additional military force," passed January 11, 1812, to a pension from the 17th of September, 1814, the day on which he was wounded; and should the decision be adverse to his claim, he asks, second, for pay from the 30th of July, 1830, the date of the surgeon's affidavit, which was filed in 1831.

In relation to these points, the Commissioner supposes four several questions to be involved, to which he wishes the attention of the Attorney General to be directed, and which I shall, therefore, proceed to answer in their order.

1. "Whether the second section of the act of the 15th of May, 1820, entitled An act to revive and continue in force an act to provide for persons who were disabled by known wounds received in the revolutionary war, and for other purposes,' has been properly interpreted by this department in extending it to other than revolutionary cases?"

It appears from the records of this office, that the construction adopted and acted on by your department was officially given by the Attorney General, in his opinion on the case of Colonel Johnson, dated the 2d of July, 1822; and that it has been recognised and followed ever since that date, not only in your department, but by my predecessors in office.

As a general rule, I adopt the decisions of the office on points officially presented, without attempting to review the grounds on which those decisions proceeded; this being the course usually pursued by courts of justice, and being, indeed, indispensable to despatch of business, and still more so to uniformity of judgment. For the same reason, even where my attention is particularly called to a prior decision, and especially if it be one which was made by one of my predecessors, and which has been acquiesced in and followed for any length of time, I should yet feel myself bound, in ordinary cases, to adhere to it.

In the present instance, I have felt it my duty, in compliance with the distinct inquiry of the Commissioner of Pensions, to look with some care into the decision referred to. As the result of this examination, I am con. strained to say that I have strong doubts as to the accuracy of the construction heretofore given to the act of 1820-so strong, indeed, that if the question were an open one, I should think it the safer and more equitable course to confine the law exclusively to revolutionary cases.

Although I do not suppose that you will think it expedient, on the doubts now expressed, to reverse the practice which has hitherto obtained in your department; I yet think it due to General Ripley, whose claims may perhaps be urged in another place, to state some of the prominent reasons which induce me to distrust the accuracy and justice of the rule in question.

The second section of the act of May 15, 1820, is in the following words:

"And be it further enacted, That the right any person now has, or hereafter may acquire, to receive a pension in virtue of any law of the United States, shall be construed to commence at the time of completing his testimony pursuant to the act hereby revived and continued in force."

The first clause certainly favors the construction which has been given. "In virtue of any law of the United States," is a phrase of very extensive import; and if the section had ended with the word "testimony," there would have been nothing to restrain the generality of that phrase, and no doubt could have existed as to its construction.

But the section does not end with that word; it uses certain additional words, which form a very material part of the law, and to which it is our duty to give full effect in construing the provision. We have no right to reject them, nor to give them such a construction as to render them absurd or inoperative.

They carry us directly to the act of 1806, named in the title, and revived by the 1st section.

The testimony is to be completed "pursuant to the act of 1806, named in the title, and revived in the body of the law. By referring to that act, it will be seen that it relates exclusively to persons who received known wounds in the revolutionary war; and that the 2d section prescribes very minutely the rules and regulations to be observed in substantiating claims intended to be preferred under it. These rules and regulations are, in their character, twofold; they determine the fact to be proved, as well as the mode or means of proof. The former is "decisive inability, the effect of a known wound or wounds received while in actual service during the revolutionary war;" the mode of proof is to be by affidavits of the cominanding officers and surgeons, or others, and the examination, on oath, of the claimant.

Strictly speaking, the testimony cannot be completed pursuant to the act of 1806, unless it conform to that act in respect to the fact required to be proved, as well as in respect to the mode of proof. In revolutionary cases, this would certainly be deemed the effect of the word "pursuant. In this sense, it would be impossible for a person disabled during the war of 1812, to complete his testimony pursuant to the act referred to; and if this be the proper construction of the word "pursuant," then it will necessarily restrain the generality of the phrase "any law," used in the former clause, and compel us to limit the whole section to cases which arose in the revolutionary war. In the brief opinion of my predecessor, these latter words are not made the subject of comment, nor do they ap pear to have attracted his attention. This is evident from the opinion itself, which is in the following words: "On the subject of Colonel Johnson's pension, I cannot see how it can be withdrawn from the sweeping provision of the second section of the act of 15th May, 1820; which directs that all pensions in virtue of any law of the United States shall be con sidered to commence at the time of completing the testimony. This provision is so direct and so universal, that the ground on which your doubts are founded is not discovered; and I should be glad to confer with you on the subject, before you act on this opinion."

Upon the construction which was thus given to the law, the word "pursuant," when applied to cases arising in the war of 1812, must be deemed to apply only to the mode of proof, and not to the fact to be proved; thus giving to one and the same word, in the same law, two different interpretations. This is sometimes done by the courts, when the necessity or justice of the case calls for such an accommodation of the language used by the lawgiver.

In the present instance, it seems to me that there is no adequate neces

sity for this unusual straining of the language; because, by construing the words "any law" to mean any law relative to revolutionary cases, the whole section is rendered consistent with itself.

This construction is also not only strained, but, in my judgment, it makes the law palpably unjust.

The act of January 11, 1812, declares that if any officer, &c., 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 pension, and under such regulations, as are, or may be, directed by law," &c. This act does not provide at what time the pension shall commence, except so far as such provision is included in the words "at such rate of pension," and "under such regulations as are, or may be, directed by law;" which words refer us (according to the opinion of the Attorney General in the case of General McNiel, dated May 31, 1832,) to the act of the 16th of March, 1802-that being the only general law then in force applicable to the subject. The 14th section of the act of 1812 directs that the party disabled shall be placed on the list of invalids "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 President, therefore, had the power to prescribe, by regulation, the time when pensions for disabilities under the act of 1812 should commence.

I cannot learn that any formal regulation on this point was ever made by the President until the 18th of April, 1829, when the President directed an order to be published, declaring that in future no person, while in the receipt of pay or emoluments as an officer of the army, should be placed on the pension list. The practice of the Pension Office had, however, from an early day, been governed by the same rule; which was expressly prescribed by the old Congress in the resolution of the 26th August, 1776, and in other resolutions of later date. This usage being kept up by the War Department, with the sanction of the President, before and at the enactment of the act of 1812, was, within the meaning of the law, a regulation directed by the President, and was, in effect, incorporated in it. All persons entering the army under that act were therefore bound to know that, if disabled they could not received pensions as invalids so long as they retained their places in the army, and received the pay and emoluments thereof. But I am distinctly informed by the Commissioner of Pensions, that this was the only limitation imposed by the usage of the office, prior to the act of 15th May, 1820, on the payment of pensions for disabilities under the act of 1812; and that where the party left the army at the time he was disabled, the pension was considered as accruing from the date of the disability, no matter when the testimony was completed or produced. This being the case, all persons who entered the army under that law had good reason to expect that, if they should become disabled, they would be allowed pensions according to the nature of their disabilities, to commence from the time when they should cease to receive the pay and emoluments of the service. The contract between them and the government was not precisely to that effect, because it was subject to the contingency that the President might prescribe other regulations. which might limit still further the commencement of the pension. But, as this power has not been exercised, the case may be considered as standing precisely on the same ground as though it had not existed.

Under these circumstances, it appears to me, that from the time when

General Ripley was disabled by a wound received in the line of his duty, he had a just claim on the good faith of the nation to be placed on the pension-list from the time when his pay and emoluments as an officer should cease And according to the usage of the office, and to the only regulation which has been made by the President, touching the time from which the pension is to commence, if he had made his application at any time before the enactment of the act of the 15th May, 1820, he would have been allowed his pension from the time when his pay ceased, which I understand was in 1821. His right to such a pension was not, indeed, an absolute one; but it was founded on the pledge contained in the act of 1812, and fortified by considerations of the most interesting and impressive character.

The effect of the construction given by my predecessor to the law of 1820 was to take away this right; and though it may be admitted that Congress had the power to do this, yet I think there can be little difference of opinion as to the harshness and injustice of such an exercise of legislative authority.

In regard to such revolutionary cases as might be presented un ler the act of 1820, there was no injustice in applying the rule given in the 2d section of that law, because all claims of that sort had been barred by lapse of time, even before the passage of the act of 1806—which act, as well as the act reviving it, had expired; and because that act also contained an express prevision that every pension under it should" commence on the day when the claimant shall have completed his testimony." This being the rule by which the pensions gratuitously proffered by the act of 1806 were to be governed, there could be no objection to repeating the same rule in reference to such cases (though it was probably unnecessary to have done so) in the act of 1820. But such a rule, when applied to cases arising under the act of 1812, which contained nothing to warn parties of the necessity to make immediate applications, and under which a different usage had obtained up to the 15th of May, 1820, was, in my opinion, positively unjust; because it defeated the expectations which persons entering the service under the law of 1812 had a right to cherish; made no discrimination between cases of supine neglect and those of forced delay; allowed nothing for difficulties occasioned by sickness, loss of papers, or other unavoidable accident; and, above all, operated retroactively on the rights of parties.

It is a first principle in the interpretation of statutes, that, where the words are doubtful, such a construction is to be preferred as will be most consistent with the reason and justice of the case. This principle, I think, would have justified my predecessor in construing the second section of the act of the 15th of May, 1820, as not extending to cases arising under the act of 1812; and, were I not restrained by the respect due to superior ability and learning, I would say that such a construction was demanded by that principle.

The action of Congress subsequently to the law of 1820 is also cal culated to strengthen the doubts above expressed. That act revived the act of 1806 for one year only; but, by the act of the 4th of February, 1822, the act of 1806 was again revived for six years, and until the then next session of Congress; and by the act of the 24th of May, 1828, it was once more revived and rendered permanent. Each of these last named reviving acts repeats, in hâc verba, the second section of the act