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above referred to, in respect to which they observe: “they consider it at variance with the letter and spirit of the law, and feel no disposition to give it their sanction, by extending its benefits to the petitioner." Had it appeared from the report that the precise question submitted to me in the case of Sergeant Fleury had been considered by the committee, the dis. sent so strongly expressed by such high authority would certainly bare

my

confidence in my construction of the law. But I think it very clear, from their report, either that my opinion was not before them, and was erroneously stated, or that they did not correctly apprehend the true character of the question referred to me, and the effect of my decision. The report states that Sergeant Devlin was first allowed, for his extra services as clerk, fifteen cents per day; and that, at subsequent periods, with. out any change of duties, his extra pay has been increased to $354 per annum; but that, not satisfied with this increase of pay, he now requests an additional allowance of fifteen cents per day, under the act of the 21 of March, 1819, from the commencement of his services as clerk. This request the committee deem an extraordinary one; and they remark, that " the only reason offered for it is, that the Attorney General has decided that sergeants of the army acting as clerks, and receiving etxra pay as clerks, were also entitled to the extra pay provided by the act above quoted. The question submitted by the Secretary of War, in Sergeant Fleury's case, was in the following words: “ Is a sergeant of the army, emplayed as an assistant clerk in one of the bureaus of the War Department

, entitled to the additional compensation of fifteen cents per day, allowed by the act of the 2d of March, 1819 ?” It will be seen that it does not include any suggestion whatever that the sergeant was in the receipt of extra pay as clerk; nor does it inquire whether, in addition to such extra pay, he would also be entitled to the fifteen cents per day given by the act of 1819; nor is it intimated in the opinion that a person so circum. stanced would also be entitled to the fifteen cents per day allowed by the act. Nor is that point even now presented to me by the terms of your question. But, to prevent further misapprehension, I will add, that I have now, for the first time, considered the question whether a non commis, sioned officer, performing constant labor within the meaning of the act of 1819, and receiving there for extra pay by order of the head of the depart: ment, is also entitled to the fifteen cents per day given by that act; and that I do not see how this circumstance can vary his legal right to the pay and allowance given by law; although I do see that, if the extra pay was really intended to be in lieu of the fifteen cents per day, it would be inequitable in the party to claim the latter; and that, if claimed and received,

it might be the duty of the department so to reduce the extra pas as to effectuate the intent with which the increase was ordered. There is also much reason to doubt whether extra pay, in addition to the fifteen cents, can be given by the head of the department in any case which is provided for by the act of 1819. My impression is that persons belonging to the army, who come within the act, are entitled to their regular par and allowances, and to the special allowances given by the act, and w nothing more, unless they perform extra duties beyond the “ constant labor” therein provided for; in which case, extra pay beyond the filtea cents per day nay no doubt be given.

I am, sir, &c., &c.,

B. F. BUTLER To the SECRETARY OF THE Navy.

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LIABILITY OF MIDSHIPMEN TO ARREST.

Midshipmen are not exempt from arrest; the proper construction of the act of the 11th of July,

1798, for establishing and organizing the marine corps, failing to include them in the exemptions made.

ATTORNEY GENERAL'S OFFICE,

May 16, 1836. Sır: In answer to the question proposed in your communication of the 14th instant, I have the honor to inform you that, in my opinion, midshipmen are not exempted from arrest, by the true construction of the fifth section of the act of the 11th of July, 1799, “for the establishing and organizing a marine corps.” It is true that they are officers, and that they are not commissioned; but then they are not “non-commissioned officers,” within the usual and technical signification of that phrase; nor are they "enlisted into the service.” It being, therefore, to say the least, exceedingly doubtful whether Congress intended to include them in the exemption from arrest, it would, in my opinion, be improper to effect that result by a latitudinary construction of the law. If public policy requires the extension of the privilege to these officers, it is not to be doubted that Congress will so direct, in explicit terms, whenever their attention may be called to it; and in the mean time it is safest to wait for such a direction. I am, sir, &c., &c.,

B. F. BUTLER. To the SECRETARY OF THE Navy.

PIRACY UPON THE HIGH SEAS.

A Texian armed schooner cannot be treated as a pirate under the act of 30th April, 1790, for

capturing an American merchantman, on the alleged ground that she was laden with provisions, stores, and munitions of war for the use of the army of Mexico, with the government of which Texas, at the time, was in a state of revolt and civil war.

ATTORNEY GENERAL'S OFFICE,

May 17, 1836. Sir: From an examination of the various documents this day referred to me in the case of the Texian armed schooner Invincible, I gather the following facts:

The American brig Pocket sailed from New Orleans, in which port she had been duly registered and cleared, in April last, for Brassos of St. Iago, a port within the limits of Texas. When approaching the termination of her voyage, she was captured by the armed schooner Invincible, sailing under the flag of the recently constituted republic of Texas, on the alleged ground that she was laden with provisions, stores, and munitions of war, destined for the use of the Mexican army under the command of General Santa Anna, and carried into Galveston bay, where the cargo was landed, and used or held by the Texian authorities, and the vessel released. These facts being made known to Commodore Dallas, the officer com. manding the United States naval forces in the West Indies and the Gulf of Mexico, with a strong appeal from the insurers and other persons interested in the protection of our commerce in those seas, that officer deemed it his duty to regard the Invincible as a pirate, and to treat her as such. He therefore promptly despatched the United States ship Warren, Master Commandant Taylor, with orders to cruise for the Invincible, and, in the event of his falling in with her, to capture her, and send her to New Orleans to be delivered up for adjudication. Pursuant to these orders, the Invincible was captured on the 29th ultimo, with the principal part of the crew. Both vessel and men were sent to New Orleans, and de. livered to the civil authority, to be proceeded against on the charge of piracy. Under these circumstances, my opinion is required upon the question, whether the charge of piracy can be sustained?

In answer to this question, I have the honor to state that, in my opinion, the capture of the American ship Pocket can in no view of it be deemed an act of piracy, unless it should appear that the principal actors in the capture were citizens of the United States. The 9th section of the crimes act of the 30th of April, 1790, declares, “ that if any citizen shall commit any piracy or robbery, or any act of hostility, against the United States, or any citizen thereof, upon the high seas, under color of any commission from any foreign Prince or State, or on pretence of authority from any person, such offender shall, notwithstanding the pretence of any such authority, be deemed, adjudged, and taken to be a pirate, felon, and robber, and, on being thereof convicted, shall suffer death." This provision is yet in force; and should it be found that any of those who participated in the capture of the Pocket are American citizens, the flag and commission of the government of Texas would be insufficient to protect them from the charge of piracy. It is, however, not suggested, in the papers before me, that any citizens of the United States were engaged in the capture; and if it be assumed that the actors in it were aliens, it must then, I think, be admitted that the capture, however unjustifiable in other respects, can never be regarded as piracy. Where a civil war breaks out in a foreign nation, and part of such nation erect a distinct and separate government, and the United States, though they do not acknowledge the independence of the new government, do yet recognise the existence of a civil war, our courts have uniformly regarded each party as a belligereut nation, in regard to acts done jure belli. Such may be unlawful, when measured by the laws of nations or by treaty stipulations; the individuals concerned in them may be treated as trespassers, and the nation to which they belong may be held responsible by the United States; but the parties concerned are not treated as pirates. It is true, that where persons act: ing under a commission from one of the belligerents make a capture, os. tensibly in the right of war, but really with the design of robbery, they will be held guilty of piracy. In the present case, there is not the least reason to believe that the capture was made with any such criminal intent. It would seem to be an infraction of the treaty made in 1831 be. tween the United States and the United Mexican States, (of which Texas was then a constituent part,) and there may be other reasons for doubting its legality as an act done in the right of war; but that it was really done in that character, and no other, is very clear. The existence of a civil war between the people of Texas and the authorities and people of the other Mexican States, was recognised by the President of the United States at an early day in the month of November last. Official notice of this fact, and of the President's intention to preserve the neatrality of the United States, was soon after given to the Mexican government. This

recognition has been since repeated by numerous acts of the Executive, several of which had taken place before the capture of the Pocket. On the assumption that the actors were aliens, the case is, therefore, fairly brought within the principle above stated, and the charge of piracy cannot be sustained.

I am, sir, &c., &c.,

B. F. BUTLER. To the PRESIDENT OF THE UNITED STATES.

RELIEF OF THE SUFFERERS BY FIRE IN NEW YORK.

The persons referred to in the act of 19th March, 1836, for the relief of the sufferers by fire

in the city of New York, before its modification by the amendatory act of the 5th of April, who, upon notice given by the collector, made returns of their lo and tendered new

bonds, which were accepted by the collector, are entitleå to the full benefit of that act. But those whose bonds were proffered, but not executed, prior to the passage of the amenda

tory act, are not entitled to the benefit of the original law.

ATTORNEY GENERAL'S OFFICE,

June 17, 1836. Sir: I have had the honor to receive your letter of the 24th ultimo, proposing for my opinion several questions arising under the act of the 19th of March last, " for the relief of the sufferers by fire in the city of New York," and the act of the 5th of April last, amendatory thereof; to each of which questions I shall now proceed to reply.

1. Are persons of the description referred to in the first mentioned act entitled to the full benefits, before its modification by the amendatory act of the 5th of April, who, upon notice given by the collector, made returns of their losses and tendered new bonds, for the extension of credit provided for in the act, which bonds were accepted by the collector prior to the passage of the last-mentioned act?

This question, in my judgment, must be answered in the affirmative. Until the passage of the amendatory act, the collector was fully authorized to extend the benefits of the original law to all persons coming within the terms of that law and complying with its provisions; and I regard his acceptance of the new bond as a virtual cancelment of the former security, because he is expressly authorized and directed to give up or cancel all such prior bonds, upon the receipt of the new bonds described in the law. His omission to do this formal act cannot affect the rights or obligations of the parties. From the moment, therefore, when the new bond was re. ceived, the law was substantially complied with; the obligors by whom the new bond was executed became responsible to the United States, and the obligors in the former bond were entitled to be discharged.

2. You propose the like question in reference to cases where returns of losses were made, and the execution of new bonds proffered, but not ex• ecuted, prior to the passage of the amendatory act, owing to the collector being desirous of having them prepared according to official forins. In these cases,

I am of opinion that the parties are not entitled to the benefits proffered by the original law. I regard all the advantages held out by that law in the light of a mere gratuity, in respect to which no vested right can be acquired except by the actual acceptance of a new

bond during the period for which the law was in force. Until such acceptance, I think it was in the power of Congress to recall the proffered bounty; and this they have done, so far as regards all bonds made after the fire, by the act of 5th of April. In all cases not substantially consummated before the enactment of the amendatory law, that law must govern, precisely as if its provisions had been incorporated in the first act.

3. In the case of bonds given between the happening of the fire and the passage of the act of the 19th of March, which fell due previous to the passage of the amendatory act of the 5th of April, but not paid until subsequently thereto; can the money paid on such bonds be refunded, and new bonds taken with the extended credit for the amount?

This question must also, for the reasons first stated, be answered in the negative. I am, sir, &c.,

B. F. BUTLER. To the SECRETARY OF THE TREASURY.

PAY OF OFFICERS OF THE NAVY.

Promoted officers of the navy, whose commissions fix dates of rank anterior to the dates of the commissions, are entitled to the increased pay from the date to which their appointments were carried back, provided they were intermediately in the performance of duties compatible with the grade to which they were elevated by their promotions.

ATTORNEY GENERAL'S OFFICE,

June 18, 1836. Sir: I have had the honor to receive your letter of the 19th ultimo, in which you ask my opinion on the following question: "Are the officers of the navy entitled, under the act of the 3d of March, 1835, which regulates the pay of the navy, to increased pay from the date of their commissions, or from the date from which they take rank ?"

It appears, from the Auditor's letter enclosed in your communication, that previous to the act of the 3d of March, 1835, it was the practice in his office to allow the officers who were promoted increased pay from the date from which they took rank, and not from the date of their commissions, although they were intermediately in the performance only of the duties of a lower grade; and that, since that act, in a few cases in which promotions have taken place, increased pay has been allowed in conformity with the ancient

In consequence, however, of my having remarked, in an opinion recently transmitted from this office to the War Department, that "legally, pay is only demandable for the period during which the party claiming it is actually in office,” the Auditor infers that the Attorney General does not consider that an officer is entitled to the pay of any grade, unless ac. tually promoted to it, and in the performance of the appropriate duties;" and he has, therefore, reported the above question for my opinion.

The observations above quoted from the opinion alluded to by the Auditor, especially when taken in connexion with the point then before me, is not necessarily decisive of the legality of the usage which has, it seems, hitherto obtained in your department. The persons embraced in that usage have been actually in office;" the government has received the benefit of their services, and is bound to pay them therefor; and the only question

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