admiralty courts, can exercise no jurisdiction over maritime crimes and offences which is not expressly conferred upon them by act of Congress. In the case of the United States vs Bevans (3 Wheaton, 336) it was decided that, admitting that the third article of the constitution (which declares that the judicial power shall extend to all cases of admiralty and maritime jurisdiction) vests in the United States exclusive jurisdiction in all such cases; and that a murder committed in the waters of a State where the tide ebbs and flows is a case of admiralty and maritime jurisdiction; yet Congress had not, in the act of 1790, so exercised the power as to confer on the courts of the United States jurisdiction over such murder; and for this reason the accused was discharged. This principle of requiring an express legislative provision to confer jurisdiction over the offence was asserted again in the case of the United States vs. Wiltberger. (5 Wheaton, 76.) It has been often asserted in other cases. It becomes, therefore, material to inquire whether there is any act of Congress prohibiting homicide in Mexico by an American citizen upon. the person of another, and conferring upon the courts of the United States jurisdiction of such homicide. The act for the punishment of certain crimes against the United States," passed April 30, 1790, (1 Statutes at Large, 112,) provides in its third section, "that if any person or persons shall within any fort, arsenal, dock-yard, magazine, or in any other place or district of country under the sole and exclusive jurisdiction of the United States, commit the crime of wilful murder, such person or persons, on being thereof convicted, shall suffer death.” This offence was not committed in any one of the places enumerated, nor in any other place or district of country which, by the constitution, is placed "under the sole and exclusive jurisdiction of the United States," and was, therefore, not within the prohibition of this section of the act. By the eighth section it is enacted "that if any person or persons shall commit upon the high seas, or in any river, haven, basin, or bay, out of the jurisdiction of any particular State, murder,' he shall suffer death and the trial of crimes committed on the high seas, or in any place out of the jurisdiction of any particular State. shall be in the district where the offender is apprehended, or into which he may be brought.' This offence was not committed on the high seas, nor in any river, haven, basin, or bay, out of the jurisdiction of any particular State, and is, therefore, not within this provision. In the ex parte case of Bollman and Swartwout (4 Cranch, 75) it was held that this clause, in regard to the trial, applied to offences committed in those places, and not to the territories of the United States, where regular courts are established competent to try those offences. Nor is this offence within this section, as modified by the fourth section of the act of 1825, (4 Statutes at Large, 115,) where the words are" that if any person or persons upon the high seas, or in any arm of the sea, or in any river, haven, creek, basin, or bay, within the admiralty and maritime jurisdiction of the United States, and out of the jurisdiction of any particular State, commit the crime of wilful murder, every person so offending shall suffer death." Nor is it affected by the fifth section of this act, as it extends only to of fences on ship-board. The provision in the fourteenth section, that "the trial of all offences which shall be committed upon the high seas, or elsewhere, out of the limits of any State or district, shall be in the district where the offender is apprehended, or into which he may be first brought," is substantially the same with that contained in the act of 1790, and does not enlarge the number of prohibited offences. There is no criminal code prescribed by Congress which had any validity within the Mexican territory. The laws of the United States were not extended over those portions of Mexico that were subjected to our arms. The rules and articles for the government of the army accompa nied the army for its government; but the civil courts derive no jurisdiction from that source. There is, indeed, no law of Congress relating to the crime of homicide that could be supposed to be applicable to the act of Captain Foster, and by which that act is constituted a crime, or subjected to the jurisdiction of the courts of the Union. His crime, if he were guilty of the crime charged, was either against the temporary gov ernment established under the law of nations by the rights of war, or against the rules and articles for the government of the army. If it were against the former, as that teinporary government, and all the laws which existed by reason of its action or by force of its authority, have ceased to exist by the restoration of the Mexican authorities, neither the offence nor any prosecution for it can any longer, in contemplation of law, have existence. If it were an offence against the rules and articles for the gov. ernment of the army, as prescribed by Congress, then, as Captain Foster and the volunteer force have been by law disbanded and mustered out of the service, and the military commission organized for his trial been dissolved, and cannot be revived, it is obvious, for both these reasons, that he can no longer be brought to trial upon a charge as for a military offence. However much it is to be regretted that the extraordinary case of Captain Foster should escape a judicial or military investigation, it is of infinitely higher moment that the constitutional principles of the government, as wisely expounded by the judiciary, should be upheld and enforced. If the country hereafter should be likely to be placed in circumstances under which a similar case might arise, Congress can easily provide against a recurrence of the difficulties of the present case. I have the honor to be, very respectfully, sir, your obedient servant, ISAAC TOUCEY. To the PRESIDENT. PENSIONS OF SERGEANTS IN THE MARINE CORPS. The joint resolution of Congress, passed 10th August, 1848, placed the officers of the marine corps, who served with the army in the war with Mexico, on an equal footing with the officers of the army with whom they served. The phrase "other remuneration," employed in said resolution, must be understood to refer to pensions. It was the intention of Congress to remove any distinction in respect to pensions between men in the same relative position, who have been disabled by the loss of their limbs whilst fighting side by side in the same service. ATTORNEY GENERAL'S OFFICE, SIR: I have the honor to reply to your letter of the 10th instant, requesting my opinion in the case of James Orr, a sergeant in the marine corps, who was severely wounded at the storming of Chapultepec, in September, 1847. The question is, whether he is entitled to a pension as a sergeant of marines, under the act of 23d April, 1800, or as a sergeant in the army, under the act of the 26th of April, 1816. In the former case, his pension would be six dollars and fifty cents per month; in the latter, eight dollars per month. The whole question turns upon the construction of the joint resolution of August 10, 1848, which places those of the marine corps who served with the army in the war with Mexico, " in all respects, as to bounty land and other remuneration in addition to ordinary pay, on a footing with the officers, non-commissioned officers, privates, and musicians of the army." What is comprehended within the words "other remuneration?" It does not mean ordinary pay, because it is in addition to ordinary pay. It does not mean clothing or rations, for they were the same in both branches of the service. It does not mean "bounty land," for that is expressly. named, and then these words are added, meaning remuneration other than bounty land, but, according to the legal rule of construction, of a like nature with it. Bounty land is not strictly remuneration, like pay or emoluments, but a benefit secured by law for the advancement of the service. A pension to a soldier disabled by wounds in battle is a similar benefit, secured by law for a like object; and it is looked to by the soldier, when he engages, as being, in a more broad and general sense, a part of the remuneration which his country promises to secure to him for his services in her cause. The act of 1816 declares that non-commissioned officers shall be "entitled" to receive, for disabilities of the highest degree, "eight dollars per month"-that is, very clearly, as a remuneration for such disabilities. This would seem to have been the comprehensive meaning attached to the words "other remuneration," when Congress made use of them. If they have not this meaning, then they have no meaning at all; for there is no other subject-matter to which they can apply, and they must be expunged, as having been used by the legislature without an object. Besides all this, it was the general intention of Congress to place these classes in all respects upon the same footing; and there is neither reason nor justice, after such a legislative declaration, in making an invidious distinction between two men in the same relative position, who have been disabled, by the loss of their limbs, fighting side by side in the same service. Such was not the intention of Congress. I have the honor to be, very respectfully, sir, your obedient servant, ISAAC TOUCEY. Hon. JOHN Y. MASON, Secretary of the Navy. COMPENSATION OF MAJOR CRAIG FOR EXTRA SERVICES. Major Craig is entitled to extra compensation for his services as superintendent of the armory at Harper's Ferry, Congress having made an appropriation therefor, which no other person is entitled to receive. The compensation claimed was assigned by Congress to the incumbent, and payment thereof, therefore, is authorized by law. (See opinion of Attorney General Mason, of 10th August, 1846, respecting the claim of Major Ripley for compensation for superintending the Springfield armory.) ATTORNEY GENERAL'S OFFICE, SIR: In regard to the claim of Major Craig, I have the honor to refer to the opinion of Mr. Attorney General Mason, of August 10th, 1846, in the case of Major Ripley, as disposing of every question which now arises. Major Ripley was superintendent of the Springfield armory, and Major Craig of that of Harper's Ferry, until the office was abolished by the act of August 23, 1842. Both had received their pay and emoluments as officers of the army. The law had constituted the office of civil superintendent of the armories and affixed to it a stated salary, and Congress had made an appropriation for the payment of it. The question that arose in both cases was, whether the prohibition contained in the act of March 3d, 1839, would prevent the payment of the salary to the legal incumbent, or whether it fell within the exception, "unless the said extra allowance or compensation be authorized by law." It was held that the compensation which Congress had assigned to the incumbent was authorized by law, and of course must be paid, if there was an appropriation applicable to the object. It is clear, therefore, that Major Craig is entitled to the salary at Harper's Ferry, as Major Ripley was at Springfield, until the 23d of August, 1842, when the office was abolished, and Congress adopted a more stringent prohibition. I have the honor to be, very respectfully, sir, your obedient servant, ISAAC TOUCEY. Hon. W. L. MARCY, Secretary of War. PENSIONS TO DISABLED OFFICERS, SEAMEN, AND MARINES. The rule of the Pension Office that an application for a pension cannot be entertained after the lapse of twenty-five years from the time when the disability was incurred, is unauthorized by law, and therefore invalid. The power conferred upon the Secretary of the Navy to establish rules and regulations for the examination and adjudication of claims for admission upon the roll, does not authorize the enactment of a statute of limitations. ATTORNEY GENERAL'S OFFICE, SIR: I have the honor to reply to your letter requesting my opinion "whether the rule of the Pension Office, that an application for a pension cannot be entertained after the lapse of twenty five years from the time when the disability was incurred, is authorized by the act of 26th March, 1804, empowering the commissioners of the navy pension fund to make such regulations as might to them appear expedient for the admission of persons on the roll of navy pensioners." This is a power to establish rules and regulations to be observed in the examination and adjudication of the legal claims of a class of persons to be admitted on the roll of navy pensioners; and does not extend to the enactment of a statute of limitations, or of any rule which would pre clude any examination, and of course any adjudication. Such a rule would be in derogation of the act of Congress, not in execution of it. This being clearly the character of the rule of the Pension Office referred to, I am of the opinion that it is invalid. I have the honor to be, very respectfully, sir, your obedient servant, ISAAC TOUCEY. Hon. JOHN Y. MASON, Secretary of the Navy. |