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among the acts referred to as prescribing the compensation; separate posts and districts were created and multiplied, as if to open a wide theatre for its more extensive operation; and there were few, if any, brevets in the army which did not draw brevet pay. The practical effects of this construction may be illustrated by the single case of the generals: the {aw clearly contemplated that two officers only should receive the pay of enajor generals; it expressly separates them from the other officers, by referring specially to the act of 11th of January, 1812, as fixing their compensation; but, by engrafting the brevet law of the 6th of July, 1912, on the act of the 3d of March, 1815, the distinction between the brigadiers and major generals was broken up; and we had six major generals in pay instead of two, as the law, it seems to me, clearly contemplated. The construction, I think, was erroneous; but it was an error in favor of those who had deseved most highly of their country in her hour of greatest peril and necessity.

The brevet law of the 6th July, 1812, being thus continued in prac. tical operation after the return of peace, exactly as it had been during the war, the act of 16th of April, 1818, "regulating the pay and emoluments of brevet officers," was passed; by which it was enacted that the officers of the army who have brevet commissions, shall be entitled to and receive the pay and emoluments of their brevet rank, when on duty and having a command according to their brevet rank, and at no other time."

This law raises the question, What is a command according to brevet rank? Generals Gaines and Scott insist that the question can be answered only by a reference to the act of the 6th July, 1812, which alone desig. nates what shall be considered as a brevet command; and declares it to consist in the command of a separate post, district, or detachment. But this was the construction already in practice; and, thus construed, the law was unnecessary. It is very manifest that the law was intended to alter something in the practice of the pay department, which Congress. disapproved; but the construction for which these gentlemen contend would confirm the practice, and not alter it. It is true, that if we put aside the practice, and look at the laws themselves, the construction for which these gentlemen contend has great force; for, if the act of 1818 had been passed with reference only to the act of 1815, then, as the effect of the act of 1815 was, according to my construction, to destroy brevet rank and pay under the peace establishment, the act of 1818 must have been considered as designed to recognise and restore them-giving the pay wherever the rank existed, and referring for its exposition to the act of 1812, which was the sole creating and directing act upon the subject. Such, I acknowledge, was my own opinion, while I considered (as, from my situation, I necessarily must) the laws as standing alone, and the act of 1818 as growing entirely and solely out of the act of 1815. Understanding, however, from your department, that the practice was already precisely that which this construction would educe from the act of 1818, it becomes manifest that the latter aet could not have grown out of the act of 1815, but out of the erroneous practice under that act, which it was intended to correct and reform; and the act of 1818, thus construed, with reference to the evil which it intended to remedy, has, I think, been correctly expounded by the order of the Sth of May, 1818, page 125 of the printed rules and regulations of the War Department, of the edition of 1820, to wit: “Brevet officers shall receive the and


emoluments of their brevet commissions when they exercise command equal to their brevet rank. For example: A brevet captain must command a company; a brevet major and a brevet lieutenant colonel a battalion; a brevet colonel a regiment; a brevet brigadier general a brigade; a brevet major general a division." Brevet Major Generals Gaines and Scott did not, I understand, command divisions; and, therefore, accord. ing to this opinion, were not entitled to the brevet pay of major general under the act of 1818.

These gentlemen further insist, that if the act of the 6th July, 1812, is not to give the rule as to brevet rank and pay, and if we are to resort to the numerical force under command of an officer to give his rank, yet still, by this criterion also, they were entitled to the rank of their brevets, and, consequently, to the pay under the act of 1818; because, although their actual comniand was not equal to a full division, it was more than a brigade; and that, in passing the limits of a brigade, it transcended their commissions as brigadier generals, and called for a higher rank in the commander; which call could be satisfied only by their brevets of major generals. This position, considered with critical and technical rigor, is perhaps correct. But, in construing an act of Congress, we are to look to the intention of the law.makers; and there is nothing in the policy or language of the act to induce the belief that Congress were looking to any minute subdivision of the cases before them. The mis. chief intended to be remedied was the prodigal waste of the public money in the profuse allowance of the brevet pay; the remedy to be applied was to restrict this allowance-1st, to such officers as were actually on duty; 2d, to such whose command accorded with their brevet rank. If these latter words are susceptible of two constructions, that construction must be preferred which will best advance the remedy and repress the mischief; and if the construction which is to produce this effect be, moreover, the most obvious sense of the terms, on every principle of statutory construction it must be preferred. Now, I apprehend that if any one at all acquainted with the organization of an army were asked “what is the command of a brigadier general ?" the obvious answer would be, "a brigade." And so if asked “what is the command of a major general ?” the obvious answer would be “a division.” And this, I apprehend, was the meaning of Congress in the words “having a command according to their brevet rank.” Hence, in this view of the subject also, I apprehend that the order of the War Department of the 8th May, 1818, before quoted, has correctly expounded the meaning of this

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We come now to the act of the 2d March, 1821, “ to reduce and fix the military peace establishment of the United States.” This act provides that the peace establishment shall be composed of four regiments of artillery and seven regiments of infantry, with such officers of engineers, of ordnance, and of the staff, as are thereinafter provided for. The act declares what officers shall belong to the peace-establishment, and, among others, that there shall be one major general and two brigadier generals; and, on the subject of pay, it is declared that the officers shall have the same rank, pay, and emoluments as are provided in like cases by e:risting laws." The President is required to arrange the officers and troops retained on the peace establishment; and he has made such

an arrangement as has placed Generals Gaines and Scott at the head of more than four regiments each.

By the same act, Congress has adopted the system of general regulations for the army, compiled by Major General Scott; and by the 44th article, 2d paragraph, (page 85) of those regulations, it is stated that two regiments shall constitute a brigade, and two brigades a division; so that, according to this arrangement, each of these gentlemen is now at the head of a corps exceeding the amount of a division. It is true that this section of the regulations is headed “ Economy of an army in campaign;" and the particular article under consideration contemplates the organization of troops into brigades, divisions, and army corps, on their arrival at the appointed place of rendezvous. Hence it may be said that this article fürnishes no criterion of what constitutes a division in quarters. But I understand that in this organization of troops into brigades and divisions, General Scott has proposed nothing new, but has merely proposed to give an authentic form to the pre-existing and well-known distribution. That companies, regiments, brigades, and divisions, constituted an arrangement known in time of peace as well as of war, is manifest from the order of the Department of War, of the 8th May, 1818, founded on the act of the 16th April of the same year; and the act itself, which was passed in time of peace, must be considered as recognising the same arrangement, because it has been already shown that such is the only rational con. struction of the terms i having a command according to their brevet rank.With such authority before us, it will not do for us to affirm that “a division" is a term of distribution known only in war, and wholly unknown in peace. I consider it it as having been clearly within the con. templation of Congress when they passed the act of the 16th April, 1818; and the order of the 8th May as being only a more distinct declaration of the same fact. I understand, too, from the military officers in the department, that four regiments were clearly and always considered as composing a division before the adoption of General Scott's regulations, and consequently independent of their authority. This, however, is a question which you are much better qualified to decide than myself.

Assuming it, for the present, that each of these gentlemen is now at the head of a division, the question is, whether they are entitled to the pay of their brevet rank since they were placed in this situation? The question is extremely difficult. Looking at the act in a general view, it would seem to have been clearly the intention of Congress that the government should be charged with the expense of one major general only, and of two brigadiers; and that no prrmanent arrangement which the President could make of the troops on the peace establishment should avail to defeat this purpose. This, however, is matter of inference, from a general view of the policy of the law, which must yield to any express de. claration of their purpose on the direct subject of pay; and on this subject they have expressly declared, as we have seen, that the rank and pay should be governed by the existing laws. Now, among the existing laws on the subject, is that of the 16th April, 1818, which recognises the brevets of the officers composing this establishment, and declares that they shall draw the pay of their brevets, whenever they have a command according to their brevet rank; that is to say, (according to the correct exposition of this department,) that those who hold the brevet of major general shall draw the pay of that rank when they command divisions,

which is the case here. This conclusion seems to me to be forced upon us by this explicit provision on the subject of pay; and whether Congress foresaw this consequence or not, they seem to me to have rendered it impossible for us to avoid it by any fair process of reasoning.

İf, therefore, these genilemen are in command of divisions under the last arrangement, I think them entitled to the brevet pay of major generals for that period. I remain, very respectfully, &c., &c.,


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The recaptors of American vessels from pirates are entitled to salvage; but the rate rests in

the discretion of the court before which the cases shall be brought.


January 8, 1822. Sir: With regard to the American ship Lucius, James Messroom master, recaptured by the United States brig Enterprise, Lieutenant Kearney, off Cape St. Antonio, from a band of pirates, I am of opinion that the recaptor is entitled to salvage, and that he may assert this right either in the Spanish court of admiralıy in Havana, into which the vessel was carried by the solicitation of the parties interested in her cargo, or, on the arrival of the vessel at Charleston, in the United States district court of South Carolina, or in any other district of the United States in which the vessel may arrive, or in which the owners of the recaptured ship and cargo may be found. With regard to the rate of salvage, it is not fixed by any law in relation to a recapture from pirates; it must therefore rest in the discretion of the court before which the case may be bronght; but, from the analogy of other cases, I presume the salvage allowed will not be short of that which the recaptured, in the moment of their deliverance, were willing to allow—to wit, one ihird. See the cases of Talbot vs. Seeman, 1 Cranch, 1; Mason vs. the Blaireau, 2 Cranch, 240. I have the honor, &c., &c.,



A copy of a book may be deposited with the Secretary of State after six months from the

time of its publication, if not done before, and to avail from the time of such deposite.


January 15, 1822. Sir: The author or proprietor of Daboll's Arithmetic has, I understand, complied with all the requisites of our laws for securing the copy-right, save only the depositing with the Secretary of State a copy of the book within six months from the time of its publication, according to the 4th section of the act of 31st May, 1790. In the mean time, the book has not,

I understand, been published by any one else. Under these circumstances, I am of the opinion that a copy may now be deposited in the Department of State, to avail from the time of its being so deposited.

Deeds are required by the statutes of several of the States to be recorded within a given time after their execution; but it has been always held, that, although not recorded within that time, the deed is not thereby made void; but that, if recorded afterwards, it will avail as a recorded deed from the time of its recordation. I have the honor, &c., &c.,



It is irregular for the War Department to accept certificates of navy surgeons instead of their

"affidavits," as required by the act of 3d March, 1819, regulating payments to invalid pen



January 17, 1822. SIR: The act of Congress of the 3d March, 1819,"regulating the payments to invalid pensioners,” requires the affidavits of two surgeons or physicians, whose credibility as such shall be certified by the magistrate before whom the affidavit is made, stating the continuance of the disability,” &c. I am of the opinion that it would be irregular in your department to accept the mere certificate even of a navy surgeon, in lieu of the affidavit so expressly required by the law; and although the circumstance of their being surgeons in the navy might seem to dispense with the necessity of a certificate of their credibility, yet, as the law has also expressly required that, and as the surgeons will have to go before a magis. irate to make their affidavit, there will be but little additional trouble in satisfying the requisition of the law in both particulars; which had there. fore better be done. I have the honor to remain, sir, with great respect, your obedient servant,



No person can locate over 160 acres under a New Madrid certificate, unless the aggregate of

lands lost exceeds 160; in which case he can locate not exceeding 640 acres.


Junuary 22, 1822. Sir: I concur entirely in the opinion expressed by the Commissioner of the Land Office, that it is not the intention of the act of Congress of the 17th of February, 1815, to permit the owners of town lots in the county of New Madrid to locate a tract of 160 acres for each town lot they may own; but one tract for the whole of their town lots, however many, unless

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