VIRGINIA COMMUTATION CLAIMS FOR MILITARY SERVICES.

Commutations for five years' full pay are not included in and provided for by the 3d section

of the act of 1832.

By that section, the Secretary of the Treasury is only required to adjust and settle the claims of certain regiments and corps for half-pay for life which had not been prosecuted to judg ment against the State of Virginia, and for which the State is bound, on the principles decided in the Supreme Court of that State in other cases.

The question, moreover, is regarded as adjudicated, and therefore not properly open for examination, except by Congress.

SIR: I had the honor, on the 18th day of January last, to receive a communication from your predecessor in relation to a claim preferred by Mr. Green, the agent of the State of Virginia, against the United States, for the sum of $58,148 66 paid by that commonwealth to the representatives of George Walls and others, for commutation claims for revolutionary services, the answer to which has been delayed by my necessary engagements in the Supreme Court and other engrossing duties, which left me until recently without the leisure required for the satisfactory examination of the subject to which it refers.

The question submitted to me is, whether, under the 3d section of the act of Congress of the 5th July, 1832, the liability of the United States is for the half-pay for life to the persons therein named, or whether it extends to the commutation for five years' full pay, they having died within ten years after the close of the revolutionary war?"

The first section of the act of Congress referred to provided for refunding to the State of Virginia the sum of $139,543 66 for payments made by said State to the officers commanding in the Virginia line in the war of the Revolution on account of half-pay for life promised the officers aforesaid by that commonwealth. The 2d section directed to be paid to the State of Virginia $241,345, to be applied to the payment of five classes of judgments that had been recovered against said State, and were then unsatisfied. The 3d section, upon which the question under consideration arises, is in the following terms: "That the Secretary of the Treasury be, and he is hereby, directed and required to adjust and settle those claims for half pay of the aforesaid regiments and corps which have not been paid or prosecuted to judgments against the State of Virginia, and for which said State would be bound on the principles of the half-pay cases already decided in the supreme court of appeals of said State; which several sums of money herein directed to be settled or paid, shall be paid out of any money in the treasury not otherwise appropriated by law." On the part of Virginia, it is insisted that by the true interpretation of this section, the claims now preferred are embraced by the act of Congress, whilst, by the decision of the late Secretary of War, it is affirmed that it extends only to half pay claims, and not to cases of commutation for five years' full pay. The question is not altogether free from difficulty; and if it were an open one, I should feel myself called on, in any opinion I might express, to give a very full and particular statement of the reasoning by which that opinion was controlled. But in view of the uniform action of the several departments of the government, founded upon an interpretation placed on the law by an eminent jurist then at the head of the Treasury Department, immediately after its passage, and fortified by the

subsequent decisions of a Secretary of the Treasury, and an Attorney General no less distinguished, I regard the matter as having passed into judgment; and the construction of the law to which the late Secretary of War has conformed his decision, so far as the executive departments of the government are concerned, as fixed, and as properly subject to modifications or change by the power of Congress alone.

I am of opinion, therefore, that the claim in question ought not to be paid without an act of Congress to authorize it.

The papers accompanying the communication of your predecessor are returned.

I have the honor to be, very respectfully, sir, your obedient servant, JNO. NELSON.

Hon. WILLIAM WILKINS,

Secretary of War.

PAYMENT OF CERTAIN VIRGINIA CLAIMS FOR MILITARY SERVICES.

The claim made in behalf of Virginia by Thomas Green, esq., agent of that State, is just, and fails within the provisions of the 2d section of the act of 1832; and the balance of the appropriations made by that act would be applicable to the payment of it, were it not that it has been carried to the surplus fund, from which it cannot be withdrawn except by act of Congress.

ATTORNEY GENERAL'S OFFICE,

April 8, 1844.

SIR: The Hon. James M. Porter, your predecessor in the Department of War, by letter dated the 6th of February last, submitted for my exami nation the accompanying application of Thomas Green, esq, agent of the State of Virginia, (which, with the papers transmitted, numbered from 1 to 8, inclusive, is herewith returned,) upon which he desired my opinion1st, whether the claim thereby presented is one for which the government of the United States is liable, under the act of Congress of the 5th July, 1832? and, 2d, whether, if such liability exists, it will not be necessary for Congress to make an appropriation before it can be paid, the unexpended balance appropriated by the second section of that act hav ing been carried to the surplus fund?

Upon the first question, I am clearly of opinion that the claim is just, and falls within the provisions of the 2d section of the act of 1832; that the exceptions taken to it by the Commissioner of Pensions cannot be sustained, and that the balance of $9,414 66 of the appropriations made by that act, if now within the control of the department, would be applicable to the payment of the demand. But the difficulty suggested by the second question is, I think, insuperable. The balance above indicated was, under the circumstances of the case, properly carried to the surplus fund, from which it can be withdrawn by the appropriating power of Congress alone.

I have the honor to be, very respectfully, sir, your obedient servant, JNO. NELSON.

SETTLEMENT OF ACCOUNTS OF OFFICERS IN APPARENT DEFAULT.

Where a disbursing agent of the government is in apparent default in respect to the moneys intrusted to him, and there be sufficient due him from the government to make good the deficiency, it is proper thus to satisfy the claim for such dues.

If there be due him any sum over and above that which is necessary to make good such deficiency, it ought not to be retained, but should be paid him, or, as in this case, to his lawful assignee.

SIR: The object of the act of the 25th January, 1828, would seem to be to protect the government against the defalcations of public officers; to guard whom against the injurious consequences of apparent delinquencies, when none in point of fact exist, the act cautiously provides the means of ascertaining the extent of the supposed default, and of bringing the question in cases of controversy to issue. If the design of the law be to secure indemnity to the government-and such, it strikes me, is its purpose-I think it would be a narrow and harsh construction of its terms to interpret them as prohibiting the payment to a public agent of an excess due to him from the public treasury over and above the amount claimed from him. In one sense, the amount of Governor Call's default, as ascertained by the accounting officers, has been paid into the treasury. It is there, and liable to be applied to the satisfaction of the government's claim the moment the amount of it shall be judicially ascertained. Over and above that amount, I am of opinion the government ought not to retain; and the sum of eighteen hundred dollars applied for by the Hon. John H. Eaton, as the assignee of Governor Call, being only a part of the excess due for salary, beyond the amount of the alleged default, may, I think, be legally and properly paid.

I have the honor to be, very respectfully, sir, your obedient servant, JNO. NELSON.

Hon. JOHN C. SPENCER,

Secretary of the Treasury.

POWER OF THE PRESIDENT TO REMIT FINES FOR CONTEMPT.

The power vested in the President to grant reprieves and pardons for offences against the United States is sufficient to authorize him to remit a fine imposed upon a citizen for contempt in neglecting to serve as a juror.

ATTORNEY GENERAL'S OFFICE,
April 15, 1844.

SIR: In reply to the inquiry submitted to me by your note of the 13th instant, I have the honor to state that, if you consider the facts set out in the petition and accompanying papers of Isaac W. Conger such as to call for the exercise of your constitutional power to grant reprieves and pardons for offences against the United States, I do not think the nature of the offence for which the fine was imposed interposes any obstacle. The pardoning power clearly embraces the case.

I have the honor to be, very respectfully, sir, your obedient servant, JNO. NELSON.

To the PRESIDENT.

COMPENSATION OF A REAPPOINTED MIDSHIPMAN.

A dismissed midshipman restored to service from date of dismission is not entitled to pay whilst out of the service, and legally incompetent to perform military duty by reason of per manent suspension. See opinion of Mr. Legaré in the case of Surgeon Du Barry, under date of November 29, 1812.

ATTORNEY GENERAL'S OFFICE,

April 15, 1844.

SIR: I have examined the case of Lieutenant William Chandler, submitted for my opinion by your communication of the 13th instant, and am very clear that his reappointment of passed midshipman, with rank from his former appointment, did not give him, in law, a right to pay from the date of his dismission from the service to the date of his reap pointment. I do not deem it necessary to elaborate a question so entirely free, in my mind, from any kind of doubt. That a citizen, having no connexion with the public service, (and such was the position of Lieu tenant Chandler from the time of his dismissal to that of his new appoint. ment,) can justly claim a compensation for the discharge of duties which he not only did not, but was not legally competent to perform, is a proposition, as it strikes me, altogether indefensible. The same question was submitted by the late Judge Upshur, whilst Secretary of the Navy, to my predecessor, in the case of Surgeon Du Barry. To the opinion of Mr. Legaré in that case, under date of November 29, 1842, I beg leave to refer you. Its reasoning and conclusion conform to the decisions that I suppose to have been made by Secretaries Dickerson and Paulding on the former applications of Lieutenant Chandler, and which, I am of opinion, were affirmative of the unquestionable law of the case.

I have the honor to be, very respectfully, sir, your obedient servant, JNO. NELSON.

Hon. JOHN Y. MASON.

Secretary of the Navy.

PENSIONS.

The second section of the act of the twenty-third of August, 1842, repeals the first section of the act of March 3, 1837, and no allowances can now be made under it.

It was continued in force temporarily by the act of August 16, 1841, in regard to certain cases; but was revoked by the act of 1842, leaving no remedy for those cases except in an appli cation to Congress.

ATTORNEY GENERAL'S OFFICE,
April 15, 1844.

SIR: The communication of the Commissioner of Pensions, under date. of the 12th, transmitted with yours of the 13th instant, has been con sidered, and I am of opinion that the second section of the act of August 23, 1842, operates a total repeal of the first section of the act of March 3, 1837, and that the case recently presented to the Commissioner of Pensions cannot therefore be entertained by him. The effect of the act of August 16, 1841, was temporarily to continue in force the act of March 3, 1837, in regard to a class of claims to which that now before the Com missioner clearly belonged, but which not having been preferred within

the peried limited by that act, and the whole power conferred on the Commissioner of Pensions by the original act having been revoked by the repealing law, can now be allowed by Congress alone. The case is an equitable one, for which, upon a proper application to the legislative branch of the government, provision would doubtless be made.

I have the honor to be, very respectfully, sir, your obedient servant, JNO. NELSON.

Hon. JOHN Y. MASON,

Secretary of the Navy.

LAND PATENTS FOR UNDIVIDED INTERESTS.

A patent cannot issue to one of the two purchasers of a quarter-section of land, or for any unspecified portion of the same. Where such conditions exist as will permit a partition of the land held in common, a patent may be issued to the purchaser entitled after the division.

ATTORNEY GENERAL'S OFFICE,

April 16, 1844.

SIR: I have carefully considered the question submitted by your communication of the 3d instant, as to the authority to issue a patent to John Suter for any portion of the quarter section referred to in the letter of the Commissioner of the General Land Office, or for an individual interest in the same, and am of opinion that no such patent can properly issue; for no specific portion, because of the absence of any means of designationthere having been no division between Suter and Backler-and for no undivided interest, because of the omission in the existing laws of the grant of any such authority to the department, and because of the manifest inconvenience and embarrassment to which the United States would be unavoidably exposed by holding in common with the grantees of the public domain.

The reasoning of the Commissioner and Solicitor of the General Land Office is, in my judgment, satisfactory to show that the patent asked for cannot be legally granted; and I do not deem it necessary to repeat their views in this opinion. The case of Mr. Suter is certainly a hard one; but I presume the laws of Illinois would afford him relief by enabling him to make partition of the quarter-section with Mr. Backler, when a patent might properly issue to him for his portion.

I return the papers with the case, and have the honor to be, sir, your obedient servant,

Hon. JOHN C. SPENCER,

Secretary of the Treasury.

JNO. NELSON.

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