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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 marshal, 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.
PENSIONS TO OFFICERS, &c., IN THE PEACE ESTABLISHMENT.
Officers, musicians, and privates, composing the peace-establishment, who, although not "wounded," have lost their health whilst in the line of their duty to such an extent as to be disabled from performing duty any more, are within the meaning of the term " or otherwise," and are prima facie entitled to the charitable relief of the legislature.
Every officer, &c., in full commission, and not on furlough, must be considered in the line of his duty, although at the moment no particular duty is devolved upon him.
WASHINGTON, April 6, 1815.
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 particular 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, might 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 arin 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 Con. gress 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 predisposing and leading cause of his affliction was imbibed in ascending the Mississippi months before, whilst a hot and vertical sun was flashing its fires around him. Another may linger in 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.
To the SECRETARY OF WAR.
WARRANTS FOR BOUNTY LANDS.
Non-commissioned officers and soldiers enlisted after 10th December, 1814, as well as before, on the proper certificates, are entitled to a bounty of three hundred and twenty acres of land; and minors, bringing themselves within the requirements, are entitled in like manner as those of full age.
WASHINGTON, August 1, 1815.
SIR: 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.
2. 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. RICHARD RUSH, Attorney General.
To the SECRETARY OF War.
PROSECUTIONS FOR PIRACY.
Prosecutions for alleged acts of piracy committed on the high seas, or in any place out of the jurisdiction of any particular State, should take place in the district where the offender is apprehended, or into which he may be first brought.
AUGUST 29, 1815.
SIR: 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 vessels 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.
To the SECRETARY OF THE NAVY.
RICHARD RUSH, Attorney General United States.
RIGHTS OF CAPTORS IN PRIZES OF WAR.
Where a brig captured off Tripoli, as prize of war, by a part of a squadron, and condemned, was afterwards taken by the commodore at a valuation, and placed in the service of the United States, decided that the captors were entitled to their prize interest of the government, and that the other moiety should be applied to the navy pension fund.
WASHINGTON, March 27, 1816.
SIR: I have examined the papers transmitted to me with your letter of the 12th of last month, and have now the honor to submit, according to your request, the following opinions upon the cases which they present:
1. It appears that the brig Transfer was captured off Tripoli, for a breach of blockade, on the 17th of March, 1804, by a part of the squadron under the command of Commodore Preble; that she was regularly condemned as prize of war; and that she was taken by the commodore at a valuation of five thousand dollars, and placed in the service of the
United States, where she co-operated as a cruiser with the squadron aforesaid, in the course of its subsequent belligerent operations.
Under such a state of facts, I do not think that the captors are divested of their prize interest. They are entitled to it at the hands of the gov ernment, which thus became the purchaser of the prize. Considering this interest as a vested one on their part, I can see no objection to a payment of the amount by the Navy Department, provided there be any existing appropriation of money to cover such payment. I also think that the portion of the prize to which the United States are entitled should, as in other cases, be applied to the use of the navy pension fund, as directed by the ninth section of the act of Congress of the 23d of April, 1800.
2. In regard to the ship Madonna Catapoliana, captured by a part of the same squadron off Tripoli on the 22d of March, 1804, and restored to the former owners, by the authority of the commodore, before any condemnation or judicial proceedings had, it would seem alike equitable that the captors should be reimbursed. I forbear, at this time, the expression of any more direct opinion upon this case, the power of Congress being fully competent to act upon it, as in the case now before that body of the Algerine vessels lately surrendered, from which the present is not in principle distinguishable.
I pray you, sir, to receive as an apology for this late answer to your letter, that, when it was received, and for some weeks afterwards, my constant public engagements at the Supreme Court of the United States prevented an attention to other subjects.
With great respect, I have the honor to be your obedient servant, RICHARD RUSH.
To the SECRetary of the Navy.
Courts-martial of marine officers stationed on shore, and convened under the articles of war, may try and sentence to suffer corporeal punishment marines who have deserted from the public ships.
WASHINGTON, March 28, 1816.
SIR: "Is it competent for a general court-martial of marine officers stationed on shore, and convened under the articles of war, to try and sentence to suffer corporeal punishment marines who have deserted from the public ships, where they were liable to such punishment under the regu lations of the navy, but which has been forbidden by the act of Congress of May 16, 1812, in regard to the army?"
Answer.-I can see no objections to such a course. It would be otherwise, had the offence been committed while the marines were employed in any service upon the land, under the act of July 11, 1798. In such case, the subsequent abolition of corporeal punishment, by the 7th section of the act of May 16, 1812, in reference to the army, would, under the 4th section of the act of July 11 aforesaid, be applicable, and exclude also its infliction upon the marines.
RICHARD RUSH, Attorney General.
To the SECRETARY OF THE NAVY.