construction of the language of the contract, the necessity for such notice could not occur. But, if Colonel Brearly was appointed, and regularly appointed, to supply the contractor's failures or deficiencies, and notice were necessary to prevent any subsequent contract by the substitute, I should incline to the opinion that the reception of the contractor's supplies at Fort Scott, in the present instance, (though after the day of the requisition,) would absolve him from the consequences of any posterior contract by the general's appointee, and impose on the general the necessity of countermanding his order. Indeed, if the General had given an order to Colonel Brearly to supply a failure which had actually occurred, nothing could discharge Colonel Brearly from the performance of the duty enjoined by that order, short of a countermanding order from the general himself: a mere notice from the contractor, (then under an actual default,) without the sanction of the general, would have been disregarded by him; at least, I think it ought, under such circumstances, to be disregarded. I will observe, finally, that it appears to have been the opinion of General Gaines himself, at one time, that the requisition in question had been substantially complied with, or at least that no culpable negligence was attributable to the contractor in this particular instance. I refer to his letter of instructions to Lieutenant Scott of the 5th of August, 1817, and more especially to his letter to the Secretary of War of the 7th May, 1818, in which (speaking of the requisition) he says: "I am under the impression that the delay in the receipt of the requisition was owing to the failure of the mails, and not chargeable to the neglect of the contractor." It is admitted that the provisions which arose from Colonel Brearly's contract were never sent to Fort Scott, but were consumed at Forts Hawkins and Mitchell; they did not, therefore, supply any failure or deficiency at Fort Scott: they seem not to have been in fact required; because there was no interval in which Fort Scott was without provisions. Nevertheless, as there was an absolute failure on the part of the contractor to meet the requisition, in point of time, if Colonel Brearly had been appointed, and regularly appointed, within the terms of the contract, to supply that failure, I should have been of the opinion that the contractor was liable. My opinion, that he is in this instance not so liable, rests on the ground that, on the only evidence shown me, Colonel Brearly was not appointed at all to supply this failure; and, if so appointed, that he was not regularly appointed in regard to Fort Scott, within the terms of the fifth article, so as to bind the contractor.

I send, herewith, a letter which I received from the contractor, with its enclosures, on the subject referred to me; it reached me at Richmond at the same time with your communication on the subject.

I have the honor to be, &c.,

To the SECRETARY OF THE TREASURY.

WM. WIRT.

BOUNTY LANDS UNDER THE ACT OF 1816.

person who enlisted as a soldier in the war of 1812 and served as such until commissioned, but who resigned his commission before the close of the war, is entitled to bounty land, provided the enlistment was for five years, or during the war.

RICHMOND, July 29, 1819. SIR: I received at this place the letter from Jeremiah N. Sterling, on which you have requested my opinion. Mr. Sterling is an applicant

for land bounty under the third section of the act of the 16th of Apri 1816, entitled "An act making further provisions for military service during the late war, and for other purposes." He states that he enliste as a soldier, and served during the late war, until he was promoted to th rank of a commissioned officer, which commission he resigned before the conclusion of the war. And the single question presented by his case is whether that resignation cuts him off from the bounty provided by the section of the act in question; or, in other words, whether, to entitle hin to the land bounty, he was not bound to have served under his commission until the end of the war?

In considering the just construction of this section, it is observable that it provides for those classes of persons for whom no previous pro vision had been made, to wit:

1. All soldiers above the age of forty-five, or under the age of eighteen, who had been enlisted to serve for five years or during the war, and who had faithfully served during the war and had been regularly discharged. 2. The representatives of such soldiers as had died whilst in the service of the United States.

All soldiers who had been enlisted and had faithfully served during the war until they had been promoted to the rank of commissioned officers, who, if they had served during the war under their enlistment and been regularly discharged, would have been entitled to a bounty in land. Under this third provision, the only questions in relation to Mr. Sterling

are

1. Was his enlistment as a soldier of that character, that if he had served under it during the whole war, and been regularly discharged, he could have been entitled to the land bounty; i. e. was he enlisted for five years, or during the war?

2. Did he serve under that enlistment until he was promoted to the rank of a commissioned officer?

If the facts of the case answer both these questions in the affirmative, he is, in my opinion, clearly entitled to the bounty under this act. To require that he should have served under his commission till the end of the war, in order to entitle him, is to require what the act of Congress does not require. If Congress intended the service so to continue, they have not said so. Their words are, "all soldiers who have been enlisted and have faithfully served during the late war until they have been promoted to the rank of commissioned officers." The moment the soldier is so promoted, his right attaches, and he is from that moment placed exactly on the footing of the soldier who had served during the war, and until regularly discharged. Any other construction would render the words until they have been promoted to the rank of commissioned offi cers" utterly senseless; whereas they are obviously used, and used for the express purpose of marking the very epoch and the event on which the right to the bounty was intended to attach. The policy of the law, presume, was to promote emulation in the ranks, and to reward the successful competitor.

I have the honor to be, &c.,

To the SECRETARY OF WAR.

WM. WIRT.

I

RIGHT OF ALIENS TO HOLD PROPERTY.

An alien can inherit, carry away, and alienate personal property, without being liable to any jus detractus; but not real estate.

RICHMOND, July 30, 1819.

SIR: I have received at this place your communication of the 23d instant, presenting for my opinion certain questions submitted to you by Mr. Gahn, the Swedish chargé d'affaires to the United States, to which I

hasten to answer.

An alien can, in the United States, inherit, with the faculty of carrying away and alienating, every species of personal property, without being liable to any jus detractus. But he cannot inherit real or fast property at all: nor is there any power in the general government, as I conceive, to alter, either by law or treaty, the provisions of the particular States in this respect. The 6th article of the old treaty of amity and commerce, between the United States and Sweden, is understood as applying to personal property only.

I have the honor to be, &c.,

To the SECRETARY OF STATE.

WM. WIRT.

CADETS AT WEST POINT.

Cadets are soldiers, receiving the pay of sergeants, and bound to perform military duty in such places and on such service as the commander-in-chief shall order; and the corps to which they are attached is a part of the military peace establishment.

As a part of the corps of engineers, they form a part of the land forces of the United States, and have been constitutionally subjected by Congress to the rules and articles of war, and to trials by court-martial. (See act of 1802, Laws of U. S., vol. 3, pp. 456-27, § 26, 27, 24; also acts of 1812, id. vol. 4, pp. 366-27; also id. pp. 404, 433; also act of 29th January, 1813, vol. 4, p. 492; also act of 5th July, 1813, vol. 4, p. 541; also act of 23th January, 1814, vol. 4, p. 644; also act of 10th February, 1814, vol. 4, p. 645; also act of 27th Janmary, 1815, vol. 4, p. 778; also act of 3d March, 1815, vol. 4, p. 825; also act of 24th April, 1816, Sess. Laws of 1816, p. 71.)

OFFICE OF THE ATTORNEY GENERAL,
August 21, 1819.

SIR: I have examined, with careful attention, the question you have submitted to me, as to the subjection of the cadets at West Point to the rules and articles of war, and to trial by courts-martial; and now proceed to give you the result of that examination.

It is proper to observe, on the threshold of this inquiry, that the genius of our constitution and laws favors the trial by jury. Before the Revolution, we had learned from Great Britain to consider that form of trial as the great palladium of our most sacred rights; and on the adoption of the constitution, the privilege was deemed sufficiently important to be secured to the people by positive and repeated provisions in that instrument. Thus, by the 2d section of the 3d article of the constitution, it is provided that "the trial of all crimes, except in cases of impeachment, shall be by jury," &c.; and by the 5th amendment to the same instrument, it is further provided that no person shall be held to answer for a capital or otherwise infamous crime, unless on a presentment or indictment of a grand jury,

except in cases arising in the land or naval forces, or in the militia when in actual service, in time of war, or public danger, &c., &c., nor be de prived of life, liberty, or property, without due process of law," &c. The 7th amendment, looking to questions of property even of trivial value, provides that "in suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved," &c. So that Congress has no power to pass a law which shall deprive the person accused of a criminal or otherwise infamous offence, of his trial by jury, except in cases arising in the land or naval forces, or in the militia, when in actual service, in time of war or public danger.

Even in relation to the land and naval forces, (including the militia when in actual service,) Congress have never considered the mere act of stamping on those bodies a military character, by ordering them to be raised, organized, and called into service, as being sufficient, of itself, to subject them to trial by court-martial under the rules and articles of war; because this would be to abrogate a high constitutional privilege by implication. In every instance, therefore, in which Congress has impressed a military character on any body of men, whom they intended to divest of the civil right of a trial by jury, besides the impressment of that military character, they have uniformly and expressly declared that they should be subject to the rules and articles of war. With the view to test the accuracy of this position, I have collated all the laws on the subject, to which I beg leave to refer you.

See the resolve of the old continental Congress of the 12th April, 1785, (vol. 1, L. U. S., p. 669, note;) that of the same body 3d October, 1787, (pp. 668, 69, 70,) concerning the military establishment; also the act of 29th September, 1789, referring to the last mentioned resolve, (vol. 2, L. U. S, p. 74, § 4;) the act of the 30th April, 1790, for regulating the military establishment of the United States, §13, (vol. 2, L. U.S., p. 102;) the act of the 3d March, 1791, for raising and adding another regiment, &c., § 10, (id. 234;) the act of the 5th March, 1792, for making further and more effectual provision for the protection of the frontiers, § 11, (id. 257-'8;) the act of the 9th May, 1794, providing for raising and organ izing a corps of artillerists and engineers, § 4, (same vol., p. 404;) the act of the 3d March, 1795, for continuing and regulating the military es tablishment of the United States, &c., § 14, (same vol., pp. 490-'1;) the act of the 30th May, 1796, to ascertain and fix the military establishment of the United States, § 20, (same vol., p. 559;) the act of the 27th April, 1798, to provide an additional regiment of artillerists and engineers, $2, (vol. 3, p. 43;) the act of 28th May, 1798, authorizing the President to raise a provisional army, § 2, (vol. 3, p. 50;) the act of the 16th July, 1798, to augment the army of the United States, § 8, (vol. 3, p. 108;) the act of the 2d March, 1799, giving eventual authority to the President to augment the army, § 3, (vol. 3, p. 261;) the act of the 16th March, 1802, fixing the military peace establishment of the United States, (vol. 3, p. 453;) the act of the 28th February, 1803, in addition to the act last mentioned, § 3, (same vol., p. 531;) the act of the 2d April, 1808, to raise for a limited time an additional military force, § 5, (vol. 4, p. 163;) the act of the 8th January, 1812, authorizing the President to raise certain com panies of rangers, for the protection of the frontier, § 4, (vol. 4, p. 366;) the act of the 11th January, 1812, to raise an additional military force, § 10, (vol. 4, p. 367;) the act of the 8th April, 1812, in addition to the act

to raise an additional military force, § 2, (vol. 4, p. 404;) the act of the 16th May, 1812, making further provision for the army of the United States, 2, (vol. 4, p. 433;) the act of the 29th January, 1813, in addition to the act entitled "An act to raise an additional military force," § 6, (vol. 1, p. 492;) the act of the 5th July, 1813, to amend the act in addition, &c., § 2, (vol. 4, p. 541;) the act of the 28th January, 1814, to cause certain regiments to be enlisted for five years, § 2, (vol. 4, p. 644;) the act of the 10th February, 1814, to raise three regiments of riflemen, § 4, (vol. 4, p. 645;) the act of the 27th January, 1815, to authorize the President to accept the services of State troops and volunteers, § 1 and 4, (vol. 4, p. 778;) the act of the 3d March, 1815, to fix the military peace establishment of the United States, 87, (vol. 4, p. 825;) the act of the 24th April, 1816, for organizing the general staff, and making further provision for the army, §6, (sessions acts of 1815-'16, pp. 71, 72.)

On turning to these laws, it is remarkable that in every instance in which troops have been raised, or their number has been augmented by any accession, however trivial, or in which their number has been reduced to a peace establishment, or in which a new and distinct destination has been given to any portion of them, Congress has cautiously introduced a provision that they shall be subject to the rules and articles of war. And what is still more remarkable, is, that even after the general act of 1806 had passed, declaring the rules and articles of war, and containing the permanent provision that the armies of the United States should be subject to these rules and articles, Congress, not content to leave after-raised troops to the operation of that general provision, have, in every nstance, repeated the provision of their subjection to military law. A course of legislation so long continued and so uniform marks the sacred respect in which Congress have ever regarded the right of trial by jury, 2) and will justify us in assuming it as their sense, that this right is never to be taken away by implication; never by the mere impressment of a milierary character on a body; never without a positive provision to that effect. In relation to the cadets at West Point, then, in order to prove their ubjection to the rules and articles of war and to trial by courts martial, it is not enough to show that Congress has stamped on them a military character; for if we respect the opinion uniformly expressed by the pracbetice of Congress, it must also be shown to have been expressly provided that those cadets shall be subject to the rules and articles of war.

With these principles in view, I shall proceed to examine all the laws which bear on the question submitted, expressing my opinion on the legal construction and operation of each law as it occurs.

The nucleus of the military institution at West Point was a corps of engineers, raised under the act of Congress of the 16th March, 1802. (Laws of the United States, vol. 3, pp. 456-7, § 26, 27, 28.)

In order to apprehend more distinctly the intention of Congress in relation to this corps, it may not be amiss to examine the previous laws relative to troops of this description, and to compare them with the two laws bearing directly on the question. Neither the two resolves of the old Congress nor the acts of 1789-'90, before cited, say anything of engineers. The first time they are mentioned in our laws is in the act of 9th May, 1794, (vol. 2, p. 403,) entitled "An act providing for raising and organizing a corps of artillerists and engineers," by which seven hundred and sixty-four non-commissioned officers, privates, &c., were di