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the safety of their command. The employment on board of one familiar with the coast along which a public vessel may be required to cruise, to perform the duties of pilot, has always been deemed prudent and economical. It is not inconsistent with law; and if the commander can rely on his skill, there is no obligation to employ a local or branch pilot, and con. sequently there is no lawful charge for pilotage in such cases where the services have not been required and rendered. This exemption extends to all vessels belonging to the United States, and employed in the public service, whether they be armed ships or not. I have the honor to be, respectfully, your obedient servant,
J. Y. MASON. To the SECRETARY OF THE Navy.
APPROPRIATION FOR THE ARMORY AT HARPER'S FERRY.
The appropriation for repairs, improvements, and new machinery at Harper's Ferry armory,
passed September 8, 1846, cannot, nor can any portion of it, be applied to the purchase of
the lands described in the estimate made at the Ordnance Office. Although a portion of the appropriation was asked for with a view to the purchase of lands,
Congress saw fit to specify the purposes for which it granted it, among which the purchase of lands is not included.
ATTORNEY GENERAL'S OFFICE,
September 18, 1846. Sır: On the 22d ultimo you referred to me, for my opinion, a letter ad. dressed to you by Lieutenant Colonel Talcott, of the Ordnance Office. It is represented that,“ in the estimate from that office for the fiscal year ending the 30th of June, 1847, the sum of $128,361 was asked for repairs and improvements at Harper's Ferry armory,” and a statement was made of the several items going to make up this sum, among which was the following: “For the purchase of the lots and improvements, as described in schedule A, hereto appended, $50,261.” The whole of this $128,361 is appropriated by the act passed on the 8th instant. The appropriation is in these words: “ For repairs and improvements, and new machinery, at Harper's Ferry armory, one hundred and twenty eight thousand three hundred and sixty one dollars."
The question is, can any part of this appropriation be applied to the purchase of the lands described in the estimates and report referred to ?
By the 7th section of the act of May 1, 1820, it is enacted that "no lands shall be purchased on account of the United States except under a law authorizing such purchase.” By the act of April 2, 1794. authority is given to establish, under the direction of the President of the United States, three or four arsenals; and it is directed that at each of the said arse. nals there shall be established a national armory. A proviso is attached, by which it is declared, “ that none of the said arsenals shall be erected until purchases of the land necessary for their accommodatiou be made, with the consent of the legislature of the State in which the same is in. tended to be erected.” Harper's Ferry was one of the points selected, the necessary lands purchased, and the buildings erected. It is, there. fore, obvious that this act does not give authority to purchase land after the erection of the said buildings. The act of the legislature, giving its assent to the purchase of a larger quantity than that which was then
deemed necessary, only serves to remove the necessity of again applying for such consent, but does not give the authority to purchase: that, by the act of 1820, must be given by Congress. I should have doubted whether the estimates might not be referred to, to explain the objects of improvements for which the appropriation was made. But Congress has given its own interpretation. In the section immediately preceding the appropriation in the act of August 8, 1846, an appropriation for the Spring. field armory, in all respects like this, was declared to be intended to au. thorize the purchase of land. It is very much to be regretted that a precaution thus acknowledged to be necessary in the case of Springfield, was not observed in the appropriation for Harper's Ferry. I deem it safest to advise that the money estimated for the purchase of lands at Harper's Ferry shall not be used until the sanction of Congress is given in more explicit terms. I have the honor to be, respectfully, sir, your obedient servant,
J. Y. MASON, To the SECRETARY OF WAR.
COMPENSATION OF THE OFFICERS, &c., OF REGIMENT OF MOUNTED
The act of 19th May, 1836, for raising a regiment of mounted riflemen, treated the regiment
thereby created as a body of mounted men, and gave them the pay and emoluments of dragoons.
ATTORNEY GENERAL'S OFFICE,
September 23, 1816. Sir: I had the honor to receive your letter of the 1st instant, enclosing a report from the Second Comptroller upon the claims of the officers and men of the regiment of mounted riflemen for dragoon pay and emolu. ments, and requesting my opinion “whether, previous to their being actually mounted, they should be paid as mounted men or as infantry?
The acts of 1833 and 1836, referred to by the Comptroller, authorize the President to convert the two regiments of dragoons thereby directed 10 be raised into infantry regiments, and, when serving on foot under such orders, they are to be paid as infantry.
But the act of 19th May, 1946, for raising a regiment of mounted riflemen, contains no such authority, and treats this regiment as a mounted regiment, giving the officers and men dragoon pay and enjoluments meaning the pay and emoluments of mounted men. I have the honor to be, sir, your obedient servant,
J. Y. MASON. Hon. W. L. MARCY,
Secretary of War.
By the laws regulating contracts for service in the regular army, all enlistments are required to
be for the term of five years; and no discretion has been conferred to contract for such service either conditionally or for a shorter term. Wherefore, enlistments cannot be lawfully made upon the condition that the soldiers are to be
discharged at the end of the war with Mexico, &c.
ATTORNEY General's OFFICE,
November 24, 1846. Sir: I have had the honor to receive your note of yesterday's date, in which you state that “the question has been raised whether, under ex. isting laws, there be authority to enlist men for the regular army for five years, with the condition that they are to be discharged at the end of the war with Mexico if it shall terminate before the end of five years from the date of enlistment," and desire my opinion on the subject.
The laws now in force regulating the term of enlistment in the regular army of the United States are, first, the act of July 5, 1838, which by the fifteenth section enacts, “that from and after the passage of this act all enlistments in the army of the United States shall be for five years." Secondly, the act of 13th May, 1846, which authorizes the President to increase the number of privates in the companies of the then existing regiments of dragoons, artillery, and infantry, to any number not exceeding one hundred, whenever in his opinion the exigencies of the public service may require the same, and to reduce the same to sixty-four when the exigencies requiring the increase shall cease; provided, that said enlistment shall be for the term of five years, and no longer, unless sooner disbanded by the President.
By the constitution, the power to raise armies is vested exclusively in Congress; and the executive department, in carrying the will of Congress into effect, must conform its action to the anthority conferred on it. The acts above mentioned, in my opinion, give no discretion to make the contract of enlistment for a shorter term than five years, or to annex a condition that the troops are to be discharged at the end of the war with Mexico. The executive department has discretionary authority to discharge before the term of service has expired, but has no power to vary the contract of enlistment. I have the honor to be, sir, very respectfully, your obedient servant,
NATHAN CLIFFORD. To the SECRETARY OF WAR.
SOLDIERS ENTITLED TO THREE MONTHS' EXTRA PAY.
Those non-commissioned officers, musicians, and privates only are entitled to the three
months' extra pay guarantied in the 29th section of the act of 1838, who, having been enlisted for the term of five years in the regular army, shall have re-enlisted in their companies or regiments within iwo months before, or one month after, the expiration of their respective terms of service. The extra pay was offered as a reward-not for re-enlisting for any period of time less than
that of their first contract, but to induce able-bodied, disciplined, and experienced men to
continue in the army for another full term of five years. Wherefore, those non-commissioned officers, musicians, and privates of the army, who shall
re-enlist-not for the full term of five years, but during the war with Mexico—will not be entitled to such extra pay.
ATTORNEY GENERAL'S OFFICE,
January 11, 1847. Sir: The case submitted for your consideration by Adjutant General Jones, and by you referred to this office for my official opinion, presents the question, as I understand it, whether a soldier who may now wish to enlist, and who, in other respects, comes within the rules prescribed by law, may change the terms of his contract from five years to “ during the war," and yet be entitled to three months' extra pay, provided for in the act of July 5, 1838? Such is believed to be the true character of the inquiry intended to be made, although it varies essentially, in its language, froin the communication of General Jones. It may be well to repeat the question in the precise form in which it is given. After referring to the law of 1838, the question occurs: “Is the soldier who may now wish to re-enlist in his company or regiment, under the provisions of the law above cited, for the period of during the war,' entitled to three months' extra pay?” The term of service, “during the war,” is unknown in the act of 1938, and was, doubtless, borrowed from the act
In the first place, you will observe that the law last referred to is entitled “An act to encourage enlistments in the regular army;" and such is the purview of the act itself. It has no reference whatever to a renewal of the term of service with the government when the first contract shall have expired. The language of the act is too plain to allow any ove lo doubt on this point. It provides “that, during the continu. ance of the war with Mexico, the term of enlistnient of the men to be recruited for the regiments of dragoons, artillery, infantry, and riflemen, of the present military establishment, shall be during the war, or five years, at the option of the recruit, unless sooner discharged. The term during the war embraces a period of time necessarily indefinite and unmeasured. It may extend beyond the period of five years; or it may fall short even of the three months for which the extra pay is supposed to be secured. The terms of the act, however, refer distinctly to the men to be recruited, and the time of service. Whether the term of enlistment shall be for a period during the war, or five years, is left at the option of the recruit. If it were needíul io confirm this view of the subject, it would only be necessary to refer to the closing paragraph of the succeed. ing section, where the soldier is again recognised as a recruit, and is required to join (not to rejoin) the regiment in which he is to serve. The section provides “ that there shall be allowed and paid to every able. bodied man who shall be duly enlisted to serve in the artillery or infantry for the term of five years, or during the war, a bounty of twelve dollars; but the payment of six dollars of the said bounty shall be deferred until